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THE  PRISONER  AT 
THE  BAR 


SIDELIGHTS  ON  THE  ADMINISTRATION 
OF  CRIMINAL  JUSTICE 


BY 
ARTHUR  TRAIN 

Assistant  District  Attorney,  New  York  County 


SECOND  EDITION 
REVISED  AND  ENLARGED 


NEW   YORK 

CHARLES   SCRIBNER'S  SONS 

1915 


Copyright,  1906,  1908,  by 
CHARLES  SCRIBNER'S  SONS 


To 
ETHEL   KISSAM  TRAIN 


m8328^24 


Digitized  by  the  Internet  Archive 

in  2007  with  funding  from 

Microsoft  Corporation 


http://www.archive.org/details/barprisonerOOtrairich 


PREFACE    TO    THE    SECOND    EDITION 

The  favorable  reception  accorded  to  the  "  Prisoner 
at  the  Bar,"  not  only  in  the  United  States  but  in 
England,  and  the  fact  that  it  has  won  a  place  in  sev- 
eral colleges  and  law  schools  as  a  reference  book, 
and  in  some  instances  as  a  sort  of  elementary  text- 
book upon  criminal  procedure,  have  resulted  in  a 
demand  for  a  new  edition.  When  the  book  was  writ- 
ten the  author's  sole  intention  was  to  present  in 
readable  form  a  popular  account  of  the  administra- 
tion of  criminal  justice.  Upon  its  publication  he 
discovered  to  his  surprise  that  it  was  the  only  book 
of  its  exact  character  in  the  English  language  or 
perhaps  in  any  other.  Eeviewers  pointed  out  that 
whereas  there  were  annotated  text-books  of  crim- 
inal procedure  and  isolated  articles  on  special  top- 
ics, most  of  them  relating  to  the  jury  system,  there 
was  in  existence  no  other  sketch  of  criminal  justice 
as  a  whole,  from  arrest  to  conviction,  based  upon 
either  actual  experience  or  hearsay. 

This  new  edition  has  been  indexed  and  is  supplied 
with  cross-references  to  other  works  on  allied  sub- 
jects. A  chapter  has  been  added  upon  "Insanity 
and  the  Law,"  and  such  statistics  as  the  book  con- 

vii 


viii  PEEFACE   TO    THE   SECOND   EDITION 

tains  have  been  brought  down  to  date.  It  is  satis- 
factory to  add  that  these  show  a  greatly  increased 
efficiency  in  the  jury  system  in  criminal  cases  in 
New  York  County,  and  that  the  tabulations  of  an 
eight  years'  experience  as  a  prosecutor  only  serve 
to  confirm  the  conclusions  set  forth  in  the  first 
edition. 

The  author  desires  to  express  his  thanks  to  Prof. 
John  H.  Wigmore,  of  the  Northwestern  University 
Law  School,  for  his  many  kind  suggestions  and  flat- 
tering references  to  this  book  in  his  masterly  work 
upon  the  law  of  evidence ;  to  Augustin  Derby,  Esq., 
of  the  New  York  bar,  who  most  unselfishly  gave 
much  time  to  the  examination  of  references,  and 
voluntarily  undertook  the  ungrateful  task  of  compil- 
ing the  index;  and  to  those  many  others  who,  by 
comment  or  appreciation,  have  made  a  second  edi- 
tion necessary. 

Bar  Harbor,  Me,, 
Sept.  1,  1908. 


PREFACE    TO    THE    FIRST    EDITION 

The  prisoner  at  the  bar  is  a  figure  little  known  to 
most  of  us.  The  newspapers  keep  us  steadily  in- 
formed as  to  the  doings  of  all  sorts  of  criminals 
up  to  the  time  of  their  capture,  and  prison  litera- 
ture is  abundant,  but  just  how  the  criminal  becomes 
a  convict  is  not  a  matter  of  common  knowledge. 
This,  however,  does  not  prevent  the  ordinary  citi- 
zen from  expressing  pronounced  and,  frequently, 
vociferous  opinions  upon  our  methods  of  adminis- 
tering criminal  justice,  in  the  same  way  that  he 
stands  ready  at  any  time  to  criticise  the  Darwinian 
theory,  free  trade  or  foreign  missions.  Full  knowl- 
edge of  any  subject  is  inevitably  an  impediment  to 
forcible  asseveration.  Generalities  are  easy  to  for- 
mulate and  difficult  to  disprove.  The  man  who 
sits  with  his  feet  up  and  his  chair  tilted  back  in 
the  ** drummer's"  hotel  will  inform  you  that  there 
is  no  such  thing  as  criminal  justice  and  that  the 
whole  judiciary,  state  and  federal,  is  ** owned''  or 
can  be  bought;  you  yourself  doubtless  believe  that 
the  jury  system  is  a  failure  and  successfully  evade 
service  upon  it;  while  your  neighbor  is  firmly  con- 
vinced that  prosecutors  secure  their  positions  by 

iz 


X       PEEFACE  TO  THE  FIEST  EDTTTON 

reason  of  their  similarity  to  bloodhounds  and  re- 
tain them  by  virtue  of  the  same  token. 

The  only  information  available  to  most  people 
on  this  exceedingly  important  subject  is  that  offered 
by  the  press,  and  the  press  (save  in  the  case  of 
sensational  murder  trials)  usually  confines  itself  to 
dramatic  accounts  of  the  arrest  of  the  more  pic- 
turesque sort  of  criminals,  with  lurid  descriptions 
of  their  offences.  The  report  or  ** story''  concludes 
with  the  statement  that  **  Detective-Sergeant  Smith 
immediately  arraigned  his  prisoner  (Robinson)  be- 
fore Magistrate  Jones,  who  committed  the  latter 
to  jail  and  adjourned  the  hearing  until  the  follow- 
ing Tuesday."  This  ends  the  matter,  and  the 
grewsome  or  ingenious  details  of  the  crime  having 
been  served  up  to  satisfy  the  public  appetite,  and 
the  offender  having  been  locked  up,  there  is  noth- 
ing, from  the  reporters'  point  of  view,  any  longer 
in  the  story.  We  never  hear  of  Robinson  again 
unless  he  happens  to  be  the  president  of  a  bank  or 
a  degenerate  millionaire.  He  is  ''disposed  of," 
as  they  say  in  the  criminal  reports,  without  excit- 
ing anybody's  interest,  and  his  conviction  or  acquit- 
tal is  not  attended  by  newspaper  comment. 

If  on  the  other  hand  the  case  be  one  of  sensational 
interest  we  are  treated  daily  to  long  histories  of 
the  defendant  and  his  family,  illustrated  by  gro- 
tesque reproductions  from  the  ancestral  photograph 
album.    We  become  familiar  with  what  he  eats  and 


PEEFACE  TO  THE  FIRST  EDITION       xi 

drinks,  the  number  of  cigars  he  smokes  and  his 
favorite  actor  and  author.  The  case  consumes 
months  in  preparation  and  its  trial  occupies  weeks. 
A  battalion  of  ** special"  talesmen  marches  to  the 
court  house, — **the  standing  army  of  the  gibbet," 
as  one  of  my  professional  brethren  (on  the  other 
side  of  the  bar)  calls  them.  As  each  of  the  twelve 
is  chosen  his  physiognomy  appears  on  the  front 
page  of  an  evening  edition,  a  tear  dropping  from 
his  eye  or  his  jaws  locked  in  grim  determination, 
in  accordance  with  the  sentiments  of  the  editor  or 
the  policy  of  the  owner.  Then  follows  a  pictorial 
procession  of  witnesses.  The  prosecutor  makes  a 
full-page  address  to  the  public  in  the  centre  of  which 
appears  his  portrait,  heroic  size,  arm  sawing  the 
air. 

**I  am  innocent!"  cries  a  purple  defendant,  in 
green  letters. 

*' Murderer!"  hisses  a  magenta  prosecutor,  in 
characters  of  vermilion. 

Finally  the  whole  performance  comes  to  an  end 
without  anybody  having  much  of  an  idea  of  what 
has  actually  taken  place,  and  leaving  on  the  public 
mind  an  entirely  false  and  distorted  conception  of 
what  a  criminal  trial  is  like. 

The  object  of  this  book  is  to  correct  the  very  gen- 
eral erroneous  impression  as  to  certain  phases  of 
criminal  justice,  and  to  give  a  concrete  idea  of  its 
actual  administration  in  large  cities  in  ordinary 


xii     PEEFACE  TO  THE  FIEST  EDITION 

cases, — cases  quite  as  important  to  the  defendants 
and  to  the  public  as  those  which  attract  widespread 
attention. 

The  millionaire  embezzler  and  the  pickpocket  are 
tried  before  the  same  judge  and  the  same  jury, 
and  the  same  system  suffices  to  determine  the  guilt 
or  innocence  of  the  boy  who  has  broken  into  a  cigar 
store  and  the  actress  who  has  murdered  her  lover. 
It  is  in  crowded  cities,  like  New  York,  containing 
an  excessive  foreign-born  population,  that  the  sys- 
tem meets  with  its  severest  test,  and  if  tried  and  not 
found  wanting  under  these  conditions  it  can  fairly 
be  said  to  have  demonstrated  its  practical  efficiency 
and  stability.  Has  the  jury  system  broken  down? 
Are  prosecutors  habitually  vindictive  and  over- 
zealous  1  It  is  the  hope  of  the  writer  that  the  chap- 
ters which  follow  may  afford  some  data  to  assist 
the  reader  in  formulating  an  intelligent  opinion 
upon  these  and  kindred  subjects.  It  is  needless  to 
say  that  no  attempt  is  made  to  discuss  police  cor- 
ruption, the  increase  or  decrease  of  crime,  or  penol- 
ogy in  general,  and  the  writer  has  confined  himself 
strictly  to  that  period  of  the  criminals'  history  de- 
scribed in  the  title  as  *  *  at  the  bak.  '  * 

To  my  official  chief,  William  Travers  Jerome,  and 
to  my  associates,  Charles  Cooper  Nott,  Charles 
Albert  Perkins,  and  Nathan  A.  Smyth,  I  desire  to 
acknowledge  my  gratitude  for  their  advice  and 
assistance ;  to  my  friend,  Leonard  E.  Opdycke,  who 


PREFACE  TO  THE  FIRST  EDITION    xiii 

suggested  the  collection  and  correlating  of  these 
chapters,  I  wish  to  express  my  thanks  for  his  con- 
stant interest  and  encouragement;  but  my  debt  to 
these  is  naught  compared  to  that  which  I  owe  to  her 
to  whom  this  book  is  dedicated,  who,  with  unsparing 
pains,  has  read,  re-read  and  revised  these  chapters 
in  manuscript,  galley  and  page  and  who  has  united 
the  functions  of  critic,  censor  and  collaborator  with 
a  patience,  good  humor,  and  discretion  which  make 
writing  a  joy  and  proof-reading  a  vacation. 

Abthur  Train. 

Bar  Harbor,  Me., 
Sept  1, 1906. 


CONTENTS 


PAGE 

Introduction.     By  Prof.  John  H.  Wigmore  .         .  xvii 

CHAPTER  I 
What  Is  Crime? 1 

CHAPTER  II 
Who  Are  the  Real  Criminals       .         .         .         .19 

CHAPTER  III 
The  Arrest    , 31 

CHAPTER  IV 
The  Police  Court 42 

CHAPTER  V 
The  Trial  of  Misdemeanors 62 

CHAPTER  VI 
The  Grand  Jury 81 

CHAPTER  VII 
The  Law's  Delays 102 

CHAPTER  VIII 
Red  Tapb  v         .         .        .        .129 


XVI  CONTENTS 

VAOB 

CHAPTER  IX 
The  Trial  of  Felonies 148 


CHAPTER  X 
The  Judge     .        .        .        .        .        .        »        .178 

CHAPTER  XI 
The  Jury '205 

CHAPTER  XII 
The  Witness 224 

CHAPTER  XIII 
The  Verdict 241 

CHAPTER  XIV 
The  Sentence 261 

CHAPTER  XV 
Women  in  the  Courts 279 

CHAPTER  XVI 
Tricks  op  the  Trade 303 

CHAPTER  XVII 
What  Fosters  Crime 334 

CHAPTER  XVIII 
Insanity  and  the  Law 350 

Index 377 


INTRODUCTION 

By  Peof.  John  H.  Wigmore, 
Dean  of  the  Law  School  of  Northwestern  University 

Mr.  Train's  book,  "  The  Prisoner  at  the  Bar,"  as  an 
entertaining  and  vivid  picture  of  the  criminal  pro- 
cedure of  to-day,  and  a  repertory  of  practical  ex- 
perience and  serious  discussion  of  present-day  prob- 
lems in  the  administration  of  justice,  is,  in  my 
opinion,  both  unique  and  invaluable.  I  know  of  no 
other  book  which  so  satisfyingly  fills  an  important 
but  empty  place  in  a  modern  field.  At  one  extreme 
stand  the  scientific  psycho-criminologists,  usefully 
investigating  and  reflecting,  but  commonly  severed 
from  the  practical  treatment  of  any  branch  of  the 
subject  until  the  prison  doors  are  reached.  At  an- 
other extreme  are  the  professional  lawyers,  skilled 
in  the  technique  of  present  procedure,  but  too  much 
tied  by  precedent  to  take  anything  but  a  narrow, 
backward-looking  view.  Off  in  a  third  corner  are 
the  economists,  sociologists,  physicians,  and  serious 
citizens  in  general,  who  notice  that  some  things  are 
going  wrong,  but  have  no  accurate  conception  of 
what  is  actually  seen  and  done  every  day  in  courts 
of  justice ;  these  good  people  run  the  risk  of  favoring 
impracticable  fads  or  impossible  theories. 

xvii 


xviii  INTEODUCTION 

Now  comes  Mr.  Tram's  book,  casting  in  the  cen- 
tre of  the  field  an  illumination  useful  to  all  parties. 
It  enlightens  the  serious  citizen  as  to  the  actual  ex- 
periences of  our  criminal  justice,  and  shows  him  the 
inexorable  facts  that  must  be  reckoned  with  in  any- 
new  proposals.  The  professional  lawyer  is  stimu- 
lated to  think  over  the  large  tendencies  involved  in 
his  daily  work,  to  realize  that  all  is  not  necessarily 
for  the  best,  and  to  join  and  help  with  his  skill.  The 
scientific  criminologist  is  warned  against  trusting 
too  much  to  the  cobwebs  of  his  ideal  theories,  or  ad- 
hering too  implicitly  to  the  Lombrosan  school  or 
other  foreign  propaganda,  and  is  forced  to  keep  in 
mind  a  living  picture  of  the  practical  needs  of  Amer- 
ican justice. 

I  do  not  hesitate  to  say  that  every  thoughtful 
American  citizen  ought  to  know  all  the  things  that 
are  told  in  this  book;  and  if  he  did,  and  as  soon 
as  he  did,  we  might  then  begin  to  work  with  encour- 
agement to  accomplish  in  a  fashion  truly  practical 
as  well  as  scientific  the  needed  improvements  in  our 
criminal  justice.  Such  effort  is  likely  to  be  hopeless 
until  people  come  to  realize  what  the  facts  are. 
Judging  by  my  own  case,  I  feel  that  most  people  will 
never  really  know  and  appreciate  the  facts  unless 
they  read  Mr.  Train's  book. 


THE  PRISONER  AT   THE  BAR 


The  Prisoner  at  the  Bar 


CHAPTER  I 
WHAT  IS  CRIME? 

A  CRIME  is  any  act  or  omission  to  act  punishable 
as  such  by  law.  It  is  difficult,  if  not  impossible,  to 
devise  any  closer  definition.  Speaking  broadly, 
crimes  are  certain  acts,  usually  wrongful,  which  are 
regarded  as  sufficiently  dangerous  or  harmful  to 
society  to  be  forbidden  under  pain  of  punishment. 
The  general  relation  of  crimes  to  wrongs  as  a  whole 
is  sometimes  illustrated  by  a  circle  having  two  much 
smaller  circles  within  it.  The  outer  circle  repre- 
sents wrongful  acts  in  the  aggregate;  the  second, 
wrongful  acts  held  by  law  to  be  torts,  that  is  to  say, 
infractions  of  private  rights  for  which  redress  may 
be  sought  in  the  civil  courts,  and  the  smallest  or 
inner  circle,  acts  held  to  be  so  injurious  to  the  public 
as  to  be  punishable  as  crimes. 

This  does  well  enough  for  the  purpose  of  illus 
trating  the  relative  proportion  of  crimes  to  torts 
or  wrongful  acts  in  general,  and,  if  a  tiny  dot  be 
placed  in  the  centre  of  the  buirs-eye  to  represent 
those  crimes  which  are  actually  punished,  one  gets 
an  excellent  idea  of  how  infinitely  small  a  number 
of  these  serve  to  keep  the  whole  social  fabric  in 
order  and  sustain  the  majesty  of  the  law.  But  the 
inference  might  naturally  be  drawn  that  whatever 

1 


2  THE  PRISONER  AT  THE  BAR 

was  a  crime  must  also  be  a  tort  or  at  least  a  wrong, 
which,  while  true  in  the  majority  of  instances,  is 
not  necessarily  the  case  in  all.  In  a  certain  sense 
crimes  are  always  wrongs  or,  at  least,  wrong,  but 


only  in  the  sense  of  being  infractions  of  law  are 
they  always  wrongs  or  wrong. 

The  word  wrong  being  the  antithesis  of  the  word 
right,  and  carrying  with  it  generally  some  ethical 
or  moral  significance,  will  vary  in  its  meaning  ac- 
cording to  the  ideas  of  the  individual  who  makes  use 
of  it.  Indeed,  it  is  conceivable  that  the  only  really 
right  thing  to  do  under  certain  circumstances  would 
be  to  commit  an  act  designated  by  law  as  a  crime. 
So,  conversely,  while  a  wrong  viewed  as  an  infrac- 
tion of  the  laws  of  God  is  a  sin,  that  which  is  uni- 


WHAT   IS   CEIMEf  3 

versally  held  sinful  is  by  no  means  always  a  crime. 
Speaking  less  broadly,  a  wrong  is  an  infraction  of  a 
right  belonging  to  another,  which  he  derives  from 
the  law  governing  the  society  of  which  he  is  a  mem- 
ber. Many  wrongs  are  such  that  he  may  sue  and 
obtain  redress  therefor  in  the  courts.  But  it  by 
no  means  follows  that  every  crime  involves  the  in- 
fraction of  a  private  right  or  the  commission  of  a 
tort.  Thus  **  perjury ''  and  most  crimes  against  the 
State  are  not  torts  at  all.  It  will  thus  be  seen  that 
no  accurate  definition  of  a  crime  can  be  given  save 
that  it  is  an  act  or  omission  which  the  State  pun- 
ishes as  such,  and  that  technically  the  word  carries 
with  it  no  imputation  or  implication  of  sin,  vice, 
iniquity,  or  in  a  broad  sense  even  of  wrong.  The  act 
may  or  may  not  be  repugnant  to  our  ideas  of  right. 
Numerically  considered,  only  a  minority  of  crimes 
have  any  ethical  significance  whatever,  the  majority 
being  designated  by  the  law  itself  as  mala  prohibita, 
rather  than  mala  in  se. 

It  is  the  duty  of  a  prosecutor  to  see  that  infrac* 
tions  of  the  criminal  law  are  punished  and  to  repre- 
sent the  public  in  all  proceedings  had  for  that  pur- 
pose, but,  in  view  of  what  has  just  been  said,  it  will 
be  observed  that  his  duties  do  not  necessarily  in- 
volve familiarity  with  vice,  violence  or  even  sin. 
The  crimes  he  is  called  upon  to  prosecute  may  be 
disgusting,  depraved  and  wicked,  or  they  may  be, 
and  frequently  are,  interesting,  ingenious,  amusing 
or,  possibly  (though  not  probably),  commendable. 
For  example,  a  man  who  chastises  the  foul  slanderer 
of  a  young  woman's  character  may  have  technically 
committed  an  assault  of  high  degree,  yet  if  he  does 
so  in  the  proper  spirit,  in  a  suitable  place,  and 


4  THE  PRISONER  AT  THE  BAR 

makes  the  offender  smart  sufficiently,  he  deserves 
the  thanks  and  congratulations  of  all  decent  men 
and  honest  women.  Yet,  indubitably,  he  has  com- 
mitted a  crime,  although,  thanks  to  our  still  linger- 
ing spirit  of  chivalry,  he  would  never  be  stamped 
by  any  jury  as  a  criminal. 

A  prosecutor  is  frequently  asked  if  he  does  not 
find  that  his  experience  has  a  *^ hardening'^  effect. 

'  *  Why  should  it  T '  he  might  fairly  reply.  '  ^  I  have 
to  do  with  criminals,  it  is  true,  but  the  criminals  as 
a  rule  are  little  or  no  worse  than  the  classes  of 
people  outside  from  which  they  have  been  drawn. 
Their  arrest  and  conviction  are  largely  due  to  acci- 
dental causes,  such  as  weak  heads,  warm  hearts, 
quick  temper,  ignorance,  foolishness  or  drunken- 
ness. We  see  all  of  these  characteristics  in  our  im- 
mediate associates.  A  great  many  convicted  per- 
sons have  done  acts  which  are  not  wrong  at  all,  but 
are  merely  forbidden.  Even  where  their  acts  are 
really  wrong  it  is  generally  the  stupid,  the  unfor- 
tunate, or  the  less  skilful  who  are  caught.  For 
every  rogue  in  jail  there  are  at  least  ten  thousand  at 
large.  The  ones  who  escape  are  wiser  and  very 
likely  meaner.  Last,  but  not  least,  a  very  great 
number  of  the  most  despicable,  wicked,  and  harm- 
ful deeds  that  can  be  committed  are  not  crimes  at 
all.  The  fact  that  a  man  is  a  criminal  argues  noth- 
ing at  all  against  his  general  decency,  and  when  I 
meet  a  convict  I  assume,  and  generally  assume  cor- 
rectly, that  to  most  intents  and  purposes  he  is  a 
gentleman.  The  code  which  puts  one  man  in  stripes 
and  allows  another  to  ride  in  an  automobile  is 
purely  artificial,  and  strictly  speaking  proves  not 
a  whit  which  is  the  better  man.*' 


WHAT   IS    CRIME?  6 

Now  while  such  an  answer  might  seem  frivolous 
enough  to  the  lay  reader,  it  would  nevertheless  be 
substantially  true.  Your  criminal,  that  is  to  say, 
strictly,  the  law-breaker  who  is  brought  to  book 
for  his  offence,  is  very  likely  a  pretty  good  sort  of 
fellow  as  fellows  go.  If  he  has  been  guilty  merely 
of  an  act  which  is  prohibited,  not  because  of  its 
inherent  wrong,  but  simply  on  grounds  of  public 
policy — malum  prohibitum — he  is  probably  as  good 
as  anybody.  His  offence  may  be  due  to  ignorance 
or  accident.  Assuming  that  his  crime  be  one 
which  would  seem  to  involve  moral  turpitude — 
malum  in  se — there  are  very  likely  mitigating  cir- 
cumstances which  render  his  offence,  if  not  excusa- 
ble, at  least  less  reprehensible  than  would  appear 
at  first  glance. 

Crimes  bear  no  absolute  relation  to  one  another. 
A  murderer  may  or  may  not  be  worse  than  a  thief, — 
and  either  may  be  better  than  his  accuser.  The 
actual  danger  of  any  particular  offender  to  the  com- 
munity lies  not  so  much  in  the  kind  or  degree  of 
crime  which  he  may  have  committed  as  in  the  state 
of  his  mind.  Even  the  criminals  who  are  really 
criminal,  in  the  sense  that  they  have  a  systematic 
intention  of  defying  the  law  and  preying  upon  soci- 
ety, are  generally  not  criminal  in  all  directions,  but 
usually  only  in  one,  so  that  taken  upon  their  unpro- 
fessional side  they  present  the  same  characteristics 
as  ordinary  and,  roughly  speaking,  law-abiding  citi- 
zens. The  bank  robber  usually  is  a  bank  robber  and 
nothing  more.  He  specializes  in  that  one  pursuit. 
It  is  his  vocation  and  his  joy.  He  prides  himself 
on  the  artistic  manner  in  which  he  does  his  work. 
He  would  scorn  to  steal  your  watch  and  is  a  man  of 


6  THE  PEISONER  AT  THE  BAR 

honor  outside  of  bank-breaking  hours, — *^  Honor 
among  thieves."  Often  enough  he  is  a  model  hus- 
band and  father.  So,  too,  may  be  your  forger,  gam- 
bler, swindler,  burglar,  highwayman,  or  thief, — any 
in  fact  except  the  real  moral  pervert ;  and  of  course 
murder  is  entirely  compatible  on  occasion  with  a 
noble,  dignified  and  generous  character.  ^' There 
is  nothing  essentially  incongruous  between  crime 
and  culture."  The  prosecutor  who  begins  by  loath- 
ing and  despising  the  man  sitting  at  the  bar  may 
end  by  having  a  sincere  admiration  for  his  intellect, 
character  or  capabilities.  This  by  way  of  defence  to 
crime  in  general. 

Our  forefathers  contented  themselves  with  a 
rough  distinction  between  crimes  as  mala  prohibita 
and  mala  in  se.  When  they  sought  to  classify  crim- 
inal acts  under  this  arrangement  they  divided  them 
accordingly  as  the  offence  carried  or  did  not  carry 
with  it  a  suggestion  of  moral  turpitude.  Broadly 
speaking,  all  felonies  were  and  are  regarded  as  mala 
in  se.  Murder,  arson,  burglary,  theft,  etc.,  in  gen- 
eral indubitably  imply  a  depraved  mind,  while  in- 
fractions of  Sunday  observance  laws  or  of  statutes 
governing  the  trade  in  liquor  do  not.  Yet  it  must 
be  perfectly  clear  that  any  such  distinction  is  in- 
conclusive. 

There  can  be  no  general  rule  based  merely  on  the 
name  or  kind  of  crime  committed  which  is  going  to 
tell  us  which  offender  is  really  the  worst.  A  misde- 
meanor may  be  very  much  more  heinous  than  a 
felony.  The  adulterator  of  drugs  or  the  employer 
of  illegal  child  labor  may  well  be  regarded  as  vastly 
more  reprehensible  than  the  tramp  who  steals  part 
of  the  family  wash.    So  far  as  that  goes  there  are  an 


WHAT   IS   CRIME!  7 

alarming  multitude  of  acts  and  omissions  not  for- 
bidden by  statute  or  classed  as  crimes  which  are 
to  all  intents  and  purposes  fully  as  criminal  as  those 
designated  as  such  by  law.  This  is  the  inevitable 
result  of  the  fact  that  crimes  are  not  crimes  merely 
because  they  are  wrong,  but  because  the  State  has 
enjoined  them.  For  example,  to  push  a  blind  man 
over  the  edge  of  a  cliff  so  that  he  is  killed  upon  the 
rocks  below  is  murder,  but  to  permit  him  to  walk 
over  it,  although  by  stretching  out  your  hand  you 
might  prevent  him,  is  no  crime  at  all.  It  is  a  crime 
to  defame  a  woman  ^s  character  if  you  write  your 
accusation  upon  a  slip  of  paper  and  pass  it  to  an- 
other, but  it  is  no  crime  in  New  York  State  to  arise 
in  a  crowded  lecture  hall  and  ruin  her  forever  by 
word  of  mouth.  It  is  a  crime  to  steal  a  banana  off  a 
fruit-stand,  but  it  is  no  crime  to  borrow  ten  thousand 
dollars  from  a  man  whose  entire  fortune  it  is,  al- 
though you  have  no  expectation  of  returning  it.  You 
can  be  a  swindler  all  your  life — the  meanest  sort  of  a 
mean  swindler,  but  there  is  no  crime  of  being  a 
swindler  or  of  being  a  mean  man.  It  is  a  crime 
to  ruin  a  girl  of  seventeen  years  and  eleven  months, 
but  not  to  ruin  a  girl  of  eighteen.  The  *^age  of 
consent"  varies  in  the  different  States.  It  is  a 
crime  to  obtain  a  dollar  by  means  of  a  false  state- 
ment as  to  a  past  or  existing  fact,  but  it  is  no  crime 
to  obtain  as  much  money  as  you  can  by  any  other 
sort  of  a  lie.  Lying  is  not  a  crime,  but  lying  under 
oath  is  a  crime, — ^provided  it  be  done  in  a  legal  pro- 
ceeding and  relates  to  a  material  matter.  The  most 
learned  jurists  habitually  disagree  as  to  what  is 
material  and  what  is  not. 
Even  when  the  acts  to  be  contrasted  are  all  crimes 


8  THE  PBISONER  AT  THE  BAR 

there  is  no  way  of  actually  discriminating  between 
them  except  by  carefully  scrutinizing  the  circum- 
stances of  each.  The  so-called  **  degrees  ^^  mean 
little  or  nothing.  If  you  steal  four  hundred  and 
ninety-nine  dollars  out  of  a  man's  safe  in  the  day- 
time it  is  grand  larceny  in  the  second  degree.  If 
you  pick  the  same  man's  pocket  of  a  subway  ticket 
after  sunset  it  is  grand  larceny  in  the  first  degree. 
You  may  get  five  years  in  the  first  instance  and  ten 
in  the  second.  If  you  steal  twenty-five  dollars  out 
of  a  bureau  drawer  you  commit  petty  larceny  and 
may  be  sent  to  prison  for  only  one  year. 

If  the  degree  of  any  particular  crime  of  which  a 
defendant  is  found  guilty  is  no  index  to  his  real 
criminality  or  of  his  danger  to  society,  still  less  is 
the  name  of  the  crime  he  has  committed  an  index  to 
his  moral  character,  save  in  the  case  of  certain 
offences  which  it  is  not  necessary  to  enumerate. 
Most  men  charged  with  homicide  are  indicted  for 
murder  in  the  first  degree.  This  may  be  a  wise 
course  for  the  grand  jury  to  pursue  in  view  of  the 
additional  evidence  which  often  comes  to  light  dur- 
ing a  trial.  But  it  frequently  is  discovered  before  the 
case  goes  to  the  jury  that  in  point  of  fact  the  killing 
was  in  hot  blood  and  under  circumstances  which 
evince  no  great  moral  turpitude  in  the  slayer.  For 
example,  two  drunken  men  become  involved  in  an 
altercation  and  one  strikes  the  other,  who  loses  his 
equilibrium  and  falls,  hitting  his  head  against  a 
curbstone  and  fracturing  his  skull.  The  striker  is 
indicted  and  tried  for  murder.  Now  he  is  doubtless 
guilty  of  manslaughter,  but  he  is  less  dangerous  to 
the  community  than  a  professional  thief  who  preys 
upon  the  public  by  impersonating  a  gasman  or  tele- 
phone repairer  and  by  thus  gaining  access  to  private 


WHAT   IS   CRIME?  9 

dwellings  steals  the  owner's  property.  One  is  an 
accidental,  the  other  an  intentional  criminal.  One  is 
hostile  to  society  as  a  whole  and  the  other  is  proba- 
bly not  really  hostile  to  anybody.  Yet  the  less  guilty 
is  denominated  a  murderer,  and  the  other  is  rarely 
held  guilty  of  more  than  petty  larceny.  A  fellow 
who  bumps  into  you  on  the  street,  if  he  be  accom- 
panied by  another,  and  grabs  your  cane,  is  guilty  of 
robbery  in  the  first  degree, — ** highway**  robbery, — 
and  may  get  twenty  years  for  it,  but  the  same  man 
may  publish  a  malicious  libel  about  you,  and  by  ac- 
cusing you  of  the  foulest  practices  rob  you  of  your 
good  name  and  be  only  guilty  of  a  misdemeanor. 
Yet  the  reader  should  not  infer  that  definitions  and 
grades  of  crime  capable  of  corresponding  punish- 
ments are  not  proper,  desirable,  and  necessary.  Of 
course  they  are.  The  practical  use  of  such  statutes 
is  to  fix  a  maximum  sentence  of  punishment.  As 
a  rule  the  minimum  is  anything  the  judge  sees  fit. 
Hence  you  may  deduce  a  general  principle  to  the 
effect  that  the  charge  against  the  prisoner,  even 
assuming  his  guilt,  indicates  nothing  definite  as  to 
his  moral  turpitude,  danger  to  the  community,  or 
general  undesirability. 

But  we  may  honestly  go  much  further.  Not  only 
are  the  names  and  degrees  of  the  crimes  which  a 
defendant  may  have  committed  of  very  little  assist- 
ance in  determining  his  real  criminality,  but  the  fact 
that  he  has  committed  them  by  no  means  signifies 
that  he  is  morally  any  worse  than  some  man  who  has 
committed  no  so-called  crime  at  all.  Many  criminals, 
even  those  guilty  of  homicide,  are  as  white  as  snow 
compared  with  others  who  have  never  transgressed 
the  literal  wording  of  a  penal  statute. 

**We  used  to  have  So  and  So  for  our  lawyer," 


10  THE  PEISONER  AT  THE  BAR 

remarked  the  president  of  a  large  street  railway 
corporation.  *^He  was  always  telling  us  what  we 
couldn't  do.  Now  we  have  Blank,  and  pay  him 
one  hundred  thousand  dollars  a  year  to  tell  us  how 
we  can  do  the  same  things."  The  thief  who  can 
have  the  advice  of  able  counsel  *^how  to  do  it"  need 
never  go  to  jail. 

Many  of  the  things  most  abhorrent  to  our  sense 
of  right  do  not  come  within  the  scope  of  the  criminal 
law.  Omissions,  no  matter  how  reprehensible,  are 
usually  not  regarded  as  criminal,  because  in  most 
cases  there  is  no  technical  legal  duty  to  perform  the 
act  omitted.  Thus,  not  to  remove  your  neighbor's 
baby  from  the  railroad  track  in  front  of  an  on- 
rushing  train,  although  it  would  cause  you  very  lit- 
tle trouble  to  do  so,  is  no  crime,  even  if  the  child's 
life  be  lost  as  a  result  of  your  neglect.  You  can  let 
your  mother-in-law  choke  to  death  without  sending 
for  a  doctor,  or  permit  a  ruffian  half  your  size  to 
kill  an  old  and  helpless  man,  or  allow  your  neigh- 
bor's house  to  burn  down,  he  and  his  family  peace- 
fully sleeping  inside  it,  while  you  play  on  the 
pianola  and  refuse  to  ring  up  the  fire  department, 
and  never  have  to  suffer  for  it — in  this  world. 

Passing  from  felonies — mala  in  se — to  misde- 
meanors— generally  only  mala  prohihita — almost 
anything  becomes  a  crime,  depending  upon  the  arbi- 
trary act  of  the  legislature. 

It  is  a  crime  in  New  York  State  to  run  a  horse 
race  within  a  mile  of  where  a  court  is  sitting;  to 
advertise  as  a  divorce  lawyer;  to  go  fishing  or 
**play"  on  the  first  day  of  the  week;  to  set  off  fire- 
works or  make  a  *^ disbursing  noise"*  at  a  military 
funeral  in  a  city  on  Sunday;  to  arrest  or  attach  a 

*  New  York  Penal  Code,  Section  276. 


WHAT   IS   CRIME?  11 

corpse  for  payment  of  debt;  to  keep  a  **slot  ma- 
chine"; to  do  business  under  any  name  not  actu- 
ally your  own  full  name  without  filing  a  certificate 
with  the  county  clerk  (as,  for  example,  if,  being  a 
tailor,  you  call  your  shop  ''The  P.  D.  Q.  Tailoring 
Establishment '0;  to  ride  in  a  long-distance  bicycle 
race  more  than  twelve  hours  out  of  twenty-four;  to 
shoe  horses  without  complying  with  certain  articles 
of  the  Labor  Law ;  to  fail  to  supply  seats  for  female 
employes  in  a  mercantile  establishment;  to  steal  a 
ride  in  a  freight  car,  or  to  board  such  a  car  or  train 
while  in  motion ;  to  set  fire  negligently  to  one 's  own 
woods,  by  means  of  which  the  property  of  another  is 
endangered;  to  run  a  ferry  without  authority,  or, 
having  contracted  to  run  one,  to  fail  to  do  so;  to 
neglect  to  post  ferry  rates  (under  certain  condi- 
tions) in  English;  to  induce  the  employe  of  a  rail- 
road company  to  leave  its  service  because  it  re- 
quires him  to  wear  a  uniform;  to  wear  a  railroad 
uniform  without  authority;  to  fish  with  a  net  in 
any  part  of  the  Hudson  River  (except  where  per- 
mitted by  statute) ;  to  secretly  loiter  about  a  build- 
ing with  intent  to  overhear  discourse  therein,  and 
to  repeat  the  same  to  vex  others  (eavesdropping) ; 
to  sell  skimmed  milk  without  a  label;  to  plant  oys- 
ters (if  you  are  a  non-resident)  inside  the  State 
without  the  consent  of  the  owner  of  the  water;  to 
maintain  an  insane  asylum  without  a  license;  to 
enter  an  agricultural  fair  without  paying  the  en- 
trance fee ;  to  assemble  with  two  or  more  other  per- 
sons "disguised  by  having  their  faces  painted,  dis- 
colored, colored  or  concealed,"  save  at  a  fancy-dress 
ball  for  which  permission  has  been  duly  obtained 
from  the  police;  or  to  wear  the  badge  of  the  **Pa- 


12  THE  PRISONER  AT  THE  BAR 

trons  of  Husbandry,"  or  of  certain  other  orders  with- 
out authority.  These  illustrations  are  selected  at 
random  from  the  New  York  Penal  Code. 

Where  every  business,  profession,  and  sport  is 
hedged  around  by  such  chevaux-de-frise  of  criminal 
statutes,  he  must  be  an  extraordinarily  careful  as 
well  as  an  exceptionally  well-informed  citizen  who 
avoids  sooner  or  later  crossing  the  dead-line.  It  is 
to  be  deprecated  that  our  law-makers  can  devise  no 
other  way  of  regulating  our  existences  save  by  threat- 
ening us  with  the  shaved  head  and  striped  shirt. 

The  actual  effect  of  such  a  multitude  of  statutes 
making  anything  and  everything  crimes,  punishable 
by  imprisonment,  instead  of  increasing  our  respect 
for  law,  decreases  it,  unless  they  are  intended  to  be 
and  actually  are  enforced.  Acts  mala  in  se  are  lost  in 
the  shuffle  among  the  acts  mala  prohibit  a,  and  we  have 
to  become  students  to  avoid  becoming  criminals. 

Year  by  year  the  legislature  goes  calmly  on  creat- 
ing all  sorts  of  new  crimes,  while  failing  to  amplify 
or  give  effect  to  the  various  statutes  governing  exist- 
ing offences  which  to  a  far  greater  degree  are  a  men- 
ace to  the  community.  For  example,  it  is  not  a  crime 
in  New  York  State  to  procure  money  by  false  pre- 
tences provided  the  person  defrauded  parts  with  his 
money  for  an  illegal  purpose.* 

In  the  McCordt  case,  in  which  the  Court  of  Ap- 
peals established  this  extraordinary  doctrine,  the  de- 
fendant had  falsely  pretended  to  the  complainant,  a 

*  No  longer  the  law  of  New  York.  After  this  book  was  published  the 
Court  of  Appeals  reversed  the  conviction  of  Tracy  for  his  $50,000  fraud 
upon  Felix  by  means  of  the  "wire-tapping"  game  and  affirmed  as  law 
the  doctrine  of  People  vs.  McCord.  The  author  takes  satisfaction  in 
recording  that  the  Legislature  thereupon  awoke  to  its  duties  and  amend- 
ed the  penal  code  in  such  a  fashion  as  to  render  such  offences  criminal. 

1 46  New  York  470. 


WHAT  IS  CEIME?  13 

man  named  Miller,  that  he  was  a  police  officer  and 
held  a  warrant  for  his  arrest.  By  these  means  he 
had  induced  Miller  to  give  him  a  gold  watch  and  a 
diamond  ring  as  the  price  of  his  liberty.  The  convic- 
tion in  this  case  was  reversed  on  the  ground  that  Mil- 
ler parted  with  his  property  for  an  unlawful  purpose ; 
but  there  was  a  very  strong  dissenting  opinion  from 
Mr.  Justice  Peckham,  now  a  member  of  the  bench  of 
the  Supreme  Court  of  the  United  States. 

In  a  second  case,  that  of  Livingston,*  the  complain- 
ant had  been  defrauded  out  of  five  hundred  dollars 
by  means  of  the  "  green-goods  "  game ;  but  this  con- 
viction was  reversed  by  the  Appellate  Division  of  the 
Second  Department  on  the  authority  of  the  McCord 
case.  The  opinion  was  written  by  Mr.  Justice  Cullen, 
now  Chief  Judge  of  the  New  York  Court  of  Appeals, 
who  says  in  conclusion : 

"  We  very  much  regret  being  compelled  to  reverse 
this  conviction.  Even  if  the  prosecutor  intended  to 
deal  in  counterfeit  money,  it  is  no  reason  why  the  ap- 
pellant should  go  unwhipped  of  justice.  We  venture 
to  suggest  that  it  might  he  well  for  the  legislature  to 
alter  the  rule  laid  down  in  McCord  vs.  People/' 

Well  might  the  judges  regret  being  compelled  to 
set  a  rogue  at  liberty  simply  because  he  had  been 
ingenious  enough  to  invent  a  fraud  which  involved 
the  additional  turpitude  of  seducing  another  into 
a  criminal  conspiracy.  Livingston  was  turned  loose 
upon  the  community,  in  spite  of  the  fact  that  he  had 
swindled  a  man  out  of  five  hundred  dollars,  because 
he  had  incidentally  led  the  latter  to  believe  that 
in  return  he  was  to  receive  counterfeit  money  or 
"  green  goods  "  which  might  be  put  into  circulation. 

*  47  App.  Div.  283. 


14  THE  PRISONER  AT  THE  BAR 

Yet,  because,  some  years  before,  the  judges  of  the 
Court  of  Appeals  had,  in  the  McCord  matter, 
adopted  the  rule  followed  in  civil  cases,  to  wit,  that 
as  the  complaining  witness  was  himself  in  fault  and 
did  not  come  into  court  with  clean  hands  he  could 
have  no  standing  before  them,  the  Appellate  Divi- 
sion in  the  next  case  felt  obliged  to  follow  them  and 
to  rule  tantamount  to  saying  that  two  wrongs  could 
make  a  right  and  two  knaves  one  honest  man.  It 
may  seem  a  trifle  unfair  to  put  it  in  just  this  way, 
but  when  one  realizes  the  iniquity  of  such  a  rule  as 
applied  to  criminal  cases,  it  is  hard  to  speak  softly. 
Thus  the  broad  and  general  doctrine  seemed  to  be 
established  that  so  long  as  a  thief  could  induce  his 
victim  to  believe  that  it  was  to  his  advantage  to  enter 
into  a  dishonest  transaction,  he  might  defraud  him  to 
any  extent  in  his  power.  Immediately  there  sprang 
into  being  hordes  of  swindlers,  who,  aided  by  adroit 
shyster  lawyers,  invented  all  sorts  of  schemes  which 
involved  some  sort  of  dishonesty  upon  the  part  of 
the  person  to  be  defrauded.  The  ** wire-tappers," 
of  whom  ** Larry"  Summerfield  was  the  Napoleon, 
the  *^ gold-brick"  and  ^^green-goods"  men,  and  the 
*  ^  sick  engineers ' '  flocked  to  New  York,  which,  under 
the  unwitting  protection  of  the  Court  of  Appeals, 
became  a  veritable  Mecca  for  persons  of  their  ilk. 
The  *^ wire-tapping"  game  consisted  in  inducing 
the  victim  to  put  up  money  for  the  purpose  of  bet- 
ting upon  a  *^sure  thing,"  knowledge  of  which  the 
thief  pretended  to  have  secured  by  ** tapping"  a 
Western  Union  wire  of  advance  news  of  the  races. 
He  usually  had  a  'Hay  out"  which  included  tele- 
graph instruments  connected  with  a  dry  battery  in 
an  adjoining  closet,  and  would  merrily  steal  the  sup- 


WHAT  IS  CRIME?  15 

posed  news  off  an  imaginary  wire  and  then  send  his 
dupe  to  play  his  money  upon  the  "  winner  "  in  a  pre- 
tended pool-room  which  in  reality  was  nothing  but  a 
den  of  thieves,  who  instantly  absconded  with  the 
money. 

In  this  way  one  John  Felix  was  defrauded  out  of 
fifty  thousand  dollars  on  a  single  occasion.*  Now  the 
simplest  legislation  could  instantly  remedy  this  evil 
and  put  all  the  "  wire-tappers  "  and  similar  swindlers, 
out  of  business,  yet  a  bill  framed  and  introduced  in 
accordance  with  the  suggestion  of  the  highest  court 
in  the  State  was  defeated.  Instead  the  legislature 
passes  scores  of  entirely  innocuous  and  respectable 
acts  like  the  following,  which  became  a  law  in  1890 : 

An  Act  for  the  Prevention  of  Blindness 

Section    1.     Should     .     .     .     nurse    having    charge    of    an 
infant     .     .     .     notice  that  one  or  both  eyes  of  such 

*  The  operations  of  these  swindlers  recently  became  so  notorious 
that  the  District  Attorney  of  New  York  County  determined  to  prosecute 
the  perpetrators  of  the  Felix  swindle,  in  spite  of  the  fact  that  the  offence 
appeared  to  come  within  the  language  of  the  Court  of  Appeals  in  the 
MeCord  and  Livingston  cases.  Accordingly  Christopher  Tracy,  alias 
Charles  Tompkins,  alias  Topping,  etc.,  etc.,  was  indicted  (on  the  theory 
of  "trick  and  device")  for  the  "common-law"  larceny  of  Felix's  fifty 
thousand  dollars. 

The  trial  came  on  before  Judge  Warren  W.  Foster  in  Part  III  of  the 
General  Sessions  on  February  27,  1906.  A  special  panel  quickly  sup- 
plied a  jury,  which,  after  hearing  the  evidence,  returned  a  verdict  of 
guilty  in  short  order. 

It  now  remains  for  the  judges  of  the  Court  of  Appeals  to  decide 
whether  they  will  extend  the  doctrine  of  the  McCord  and  Livingston 
cases  to  a  fraud  of  this  character,  whether  they  will  limit  the  doctrine 
strictly  to  cases  of  precisely  similar  facts,  or  whether  they  will  frankly 
refuse  to  be  bound  by  any  such  absurd  and  iniquitous  theory  and  con- 
sign the  McCord  case  to  the  dust-heap  of  discarded  and  mistaken  doc- 
trines, where  it  rightfully  belongs.  Their  action  will  determine  whether 
the  perpetrators  of  the  most  ingenious,  elaborate  and  successful  bunco 
game  in  the  history  of  New  York  County  shall  be  punished  for  their 
offence  or  instead  be  turned  loose  to  prey  at  will  upon  the  community  at 
large.  (See  "The  Last  of  the  Wire-Tappers "  in  the  American  Magazine 
for  June,  1906 ;  also  incorporated  in  the  author's  "True  Stories  of  Crime," 
pp.  103-121,  published  by  Charles  Scribner's  Sons,  1908.) 


16  THE  PRISONER  AT  THE  BAR 

infant  are  inflamed  or  reddened  at  any  time  within  two 
weeks  after  its  birth  it  shall  be  the  duty  of  such  nurse 
.  .  .  to  report  the  fact  in  writing  within  six  hours 
to  the  health  officer  or  some  legally  qualified  practi- 
tioner of  medicine  .  .  . 
Section  2.  Any  failure  to  comply  with  the  provisions  of 
this  act  shall  be  punished  by  a  fine  not  to  exceed  one 
hundred  dollars,  or  imprisonment  not  to  exceed  six 
monthSy  or  both. 

The  criminal  law  which  had  its  origin  when  vio- 
lence was  rife  is  admirably  adapted  to  the  preven- 
tion, prosecuting  and  punishment  of  crude  crimes, 
such  as  arson,  rape,  robbery,  burglary,  mayhem,  as- . 
sault,  homicide,  and  ^* common-law''  larceny, — theft 
accompanied  by  a  trespass.  In  old  times  everything 
was  against  the  man  charged  with  crime — at  least 
that  was  the  attitude  of  the  court  and  jury.  *  *  Aha ! ' ' 
exclaims  the  judge  as  the  evidence  goes  in.  **You 
thought  you  were  stealing  only  a  horse!  But  you 
stole  a  halter  as  well!''  And  the  spectators  are 
convulsed  with  merriment. 

We  take  honest  pride  in  the  protection  which 
our  law  affords  to  the  indicted  prisoner.  It  is  the 
natural  expression  of  our  disapproval  of  a  system 
which  at  the  time  of  our  severance  from  England 
ignored  the  rights  of  the  individual  for  those  of  the 
community.  We  touched  the  lips  of  the  defendant 
and  gave  him  the  right  to  speak  in  his  own  behalf. 
We  gave  him  an  unlimited  right  of  appeal  on  any 
imaginable  technicality.*  But  while  we  have  been 
making  it  harder  and  harder  to  convict  our  common 
criminals,  we  have  to  a  very  great  extent  failed 
to  recognize  the  fact  that  all  sorts  of  new  and 
ingenious  crimes  have  come  into  existence  with 
which  the  law  in  its  present  state  is  utterly  unable 
to  cope.    The  evolution  of  the  modern  corporation 

*  Cf .  in  general,  references  given  infra,  p.  339. 


WHAT   IS   CKIME?  17 

has  made  possible  larcenies  to  the  punishment  of 
which  the  law  is  entirely  inadequate.  '*Acts  for 
the  prevention  of  blindness'^  are  perhaps  desirable, 
but  how  about  a  few  statutes  to  prevent  the  officers 
of  insurance  companies  from  arbitrarily  diverting 
the  funds  of  that  vague  host  commonly  alluded  to 
as  ** widows  and  orphans^'!  The  careless  nurse  is 
a  criminal  and  may  be  confined  in  a  penitentiary; 
while  perhaps  a  man  who  may  be  guilty  of  a  great 
iniquity  and  known  to  be  so  drives  nonchalantly  off 
in  his  coach  and  four. 

What  is  crime?  We  may  well  ask  the  question, 
only  eventually  to  be  confronted  by  that  illuminat- 
ing definition  with  which  begins  the  Penal  Code — 
**A  crime  is  an  act  or  omission  forbidden  by  law 
and  punishable  upon  conviction  by  .  .  .  penal 
discipline.''  Let  us  put  on  our  glasses  and  find  out 
what  these  acts  or  omissions  are.  When  we  have 
done  that  we  may  begin  to  look  around  for  the 
^criminals.  But  it  will  be  of  comparatively  little 
assistance  in  finding  the  sinners. 

So-called  criminologists  delight  in  measuring  the 
width  of  the  skulls  between  the  eyes,  the  height  of 
the  foreheads,  the  length  of  the  ears,  and  the  angle 
of  the  noses  of  persons  convicted  of  certain  kinds 
of  crimes,  and  prepare  for  the  edification  of  the  sim- 
ple-minded public  tables  demonstrating  that  the  bur- 
glar has  this  kind  of  a  head,  the  pickpocket  that  sort 
of  an  ear,  and  the  swindler  such  and  such  a  variety 
of  visage.  Exhaustive  treatises  upon  crime  and 
criminals  lay  down  general  principles  supposed  to 
assist  in  determining  the  kind  of  crime  for  which 
any  particular  unfortunate  may  have  a  predilec- 
tion.     One   variety    of    criminal    looks    this    way 


18  THE  PEISONER  AT  THE  BAR 

and  another  looks  that  way.  One  has  blue  eyes, 
the  other  brown  eyes.*  Some  look  up,  others  look 
down.  My  friend,  if  you  examine  into  the  question, 
you  will  probably  discover  that  the  clerk  who  sells 
you  your  glass  of  soda  water  at  the  corner  drug 
store  will  qualify  for  some  one  of  these  classes,  so 
will  your  host  at  dinner  this  evening,  so,  very  likely, 
will  the  family  doctor  or  the  pastor  of  your  church. 

The  writer  is  informed  that  there  has  recently 
been  produced  an  elaborate  work  on  political  crim- 
inals in  which  an  attempt  is  made  to  set  forth  the 
telltale  characteristics  of  such.  It  is  explained  that 
the  tendency  to  commit  such  crimes  may  be  inher- 
ited. You  are  about  as  likely  to  inherit  an  inclina- 
tion to  commit  a  political  crime  as  you  are  to  derive 
from  a  maiden  aunt  a  tendency  to  violate  a  speed 
ordinance  or  make  a  "disbursing"  noise. 

Let  some  one  codify  all  the  sins  and  meannesses 
of  mankind,  let  the  legislatures  make  them  crimes 
and  affix  appropriate  penalties,  then  those  of  us 
who  still  remain  outside  the  bars  may  with  more 
propriety  indulge  ourselves  in  reflections  at  the  ex- 
pense of  those  who  are  not. 

*The  following  appeared  in  the  New  York  Ghhe  for  April  25,  1905: 
"  Criminal  eyes. — It  is  well  known,"  says  Dr.  Beddoe,  F.R.S.,  "  that 
brown  eyes  and  dark  hair  are  particularly  common  among  the  crimi- 
nal classes.  An  American  observer  calls  the  brown  the  criminal  eye, 
etc.,  etc." 


CHAPTER  n 
WHO  ARE  THE  REAL  CRIMINALS? 

Some  reader  of  the  preceding  chapter  may  per- 
haps remark, '  *  This  is  all  very  well  so  far  as  it  goes. 
It  doubtless  is  entirely  true  from  a  purely  technical 
point  of  view.  But  that  is  only  one  side  of  the  mat- 
ter. How  about  the  real  criminals  1  *  *  This  is  neither 
an  unexpected  nor  an  uninvited  criticism.  Who  are 
the  ^^reaV  criminals?  Charles  Dudley  Warner 
says:  ^'Speaking  technically,  we  put  in  that  [the 
criminal]  class  those  whose  sole  occupation  is  crime, 
who  live  upon  it  as  a  profession  and  who  have  no 
other  permanent  industry.  They  prey  upon  society. 
They  are  by  their  acts  at  war  upon  it  and  are  out- 
laws.'*  Now  the  class  of  professional  criminals  to 
which  Mr.  Warner  refers  as  contrasted  with  the 
great  mass  of  criminal  defendants  as  a  whole  is,  in 
point  of  fact,  relatively  so  small,  and  so  easily 
recognized  and  handled,  that  it  plays  but  an  in- 
conspicuous part  in  the  administration  of  criminal 
justice. 

The  criminals  who  conform  accurately  to  child- 
hood's tradition  are  comparatively  few  in  number. 
The  masked  highwayman,  the  safe-cracker  and  even 
the  armed  house  burglar  have,  with  a  few  exceptions, 
long  since  withdrawn  from  the  actual  pursuit  of 
their  romantic  professions  and  exist  practically  only 
in  the  eagerly  devoured  pages  of  Sherlock  Holmes 
and  the  "  memoirs  of  great  detectives."     New  and 

19 


20 


THE  PEISONER  AT  THE  BAR 


almost  more  picturesque  figures  have  taken  their 
places, — the  polite  and  elegant  swindler,  the  out-at- 
the-elbows  but  confidence-inspiring  promoter  of  as- 
setless  corporations,  the  dealer  in  worthless  securi- 
ties, and  the  forger  who  drives  in  his  own  carriage 
to  the  bank  he  intends  to  defraud.  In  some  cases 
the  individuals  are  the  same,  the  safe-cracker  merely 
having  doffed  his  mask  in  favor  of  the  silk  hat  of 
Nassau  Street.  Of  yore  he  stole  valuable  securities 
which  he  was  compelled  to  dispose  of  at  a  tremen- 
dous discount ;  now  he  sells  you  worthless  stocks  and 
bonds  at  a  slight  premium.  Mr.  J.  Holt  Schorling, 
writing  in  The  Contemporary  Review  for  June,  1902, 
points  out  that  while  all  crimes  other  than  fraud 
decreased  materially  in  England  from  1885  to  1899, 
the  crime  of  fraud  itself  materially  increased  during 
the  same  period.* 

The  subject  is  a  tempting  one,  but  it  is  not  essen- 
tial to  our  thesis.  The  devil  is  not  dead;  he  has 
merely  changed  his  clothes.  Criminal  activity  has 
not  subsided ;  it  has  instead  sought  new  ways  to  meet 
modern  conditions,  and  so  favorable  are  these  that 

♦Including  under  the  general  term  "fraud,"  obtaining  money  by- 
false  pretences,  thefts  by  solicitors,  bankers,  agents,  directors,  trus- 
tees, etc.  ("generally  recorded  under  the  euphony  'mis-appropria- 
tion'"), falsifying  accounts,  etc.,  Mr,  Schorling  found  that  taking  the 
number  of  these  two  divisions  of  crime  between  1885-1889  as  100% 
there  had  been  the  following  relative  decrease  and  increase  between 
them: 


All  Crimes  Except  Fraud 
1885-1889 —^—i^— 100    % 


1890-1894 
1895-1899 


96.2% 
90.4% 


Frauds 


1885-1889 
1890-18941 
1895-1899 


100    % 
110.1% 

138.3% 


A  similar  table  constructed  for  the  United  States  during  the  last  fif- 
teen years  would  be  instructive  but  perhaps  unduly  depressing.  Recent 
financial  and  other  disclosures  would  probably  send  up  the  mercury 
of  the  "fraud"  thermometer  until  it  burst. 


WHO  ARE  THE  REAL  CRIMINALS?     21 

while  polite  crime  may  be  said  still  to  be  in  its 
infancy,  it  is  nevertheless  thriving  lustily. 

While  the  degenerate  criminal  class  is  the  subject 
of  much  elaborate  and  minute  analysis  by  our  con- 
tinental neighbors,  its  extent  is  constantly  exagger- 
ated and  its  relation  to  the  other  criminal  classes  not 
fully  appreciated.  To  read  some  supposedly  scien- 
tific works  one  would  imagine  that  every  court  of 
criminal  justice  was  or  should  be  nothing  but  a  sort 
of  clinic.  To  these  learned  authors,  civilization,  it  is 
true,  owes  a  debt  for  their  demonstration  that  some 
crime  is  due  to  insanity  and  should  be  prevented, 
and,  where  possible,  cured  in  much  the  same  manner. 
But  they  have  created  an  impression  that  practically 
all  crime  is  the  result  of  abnormality. 

Every  great  truth  brings  in  its  train  a  few  false- 
hoods,— every  great  reform  a  few  abuses.  The  first 
penological  movement  was  in  the  direction  of  prison 
reform.  While  perhaps  the  psychological  problem 
was  not  entirely  overlooked,  it  was  completely  subor- 
dinated to  the  physical.  It  is  a  noble  thing  that  the 
convict  should  have  a  warm  cell  in  winter  and  a  cool 
one  in  summer,  with  electric  light  and  running  water, 
wholesome  and  nutritious  food,  books,  bathrooms, 
hospitals,  chapels,  concerts,  ball  games  and  chap- 
lains. *^But  it  must  be  noted  that  along  with  this 
movement  has  grown  up  a  sickly  sentimentality 
about  criminals  which  has  gone  altogether  too  far, 
and  which,  under  the  guise  of  humanity  and  philan- 
thropy, confounds  all  moral  distinctions.''  To  a 
large  number  of  well-meaning  people  every  convict 
is  a  person  to  whom  the  State  has  done  an  injury. 

Then  came  the  study  of  degeneracy,  with  the  cra- 
nium of  every  criminal  as  a  subject  of  investigation. 


22  THE  PEISONER  AT  THE  BAB 

In  1881  or  thereabouts  Professor  Benediekt  pub- 
lished his  conclusion  that  ^'the  brains  of  criminals 
exhibit  a  deviation  from  the  anthropological  variety 
of  their  species,  at  least  among  the  cultured  races. '* 
It  was  a  commendable  thing  to  point  out  the  rela- 
tion of  insanity  to  crime.  It  is  an  undeniable  truth 
that  there  are  insane  people  who  are  predisposed 
to  crime  just  as  there  are  those  who  are  predisposed 
to  dance. 

The  vicious  criminal  class  contains  many  who  are 
actually  or  incipiently  insane,  and  it  numbers  a  great 
many  more  who  are  physically  and  mentally  normal, 
who  yet  by  reason  of  their  education  and  environ- 
ment are  not  much  to  be  blamed  for  doing  wrong. 
But  it  is  far  from  true  that  a  majority  of  the  '^reaV 
criminals  are  mentally  defective.  Crime  and  insan- 
ity are  no  more  closely  related  than  sin  and  insanity. 
Certain  criminals  are  also  perverts.  But  they  would 
be  criminals  even  if  they  were  not  perverts.  The 
fact  that  a  man  who  takes  drugs  is  also  a  criminal 
does  not  prove  that  he  is  a  criminal  because  he  takes 
drugs.  "We  know  many  drug-takers  who  are  other- 
wise highly  respectable.  Go  to  the  General  Sessions 
and  watch  the  various  defendants  who  are  brought 
into  court  and  you  will  discover  little  more  degen- 
eracy or  abnormality  than  you  would  find  on  the  cor- 
ner of  Twenty-third  Street  and  Fifth  Avenue  among 
the  same  number  of  unaccused  citizens. 

The  point  which  the  writer  desires  to  make  is  that, 
leaving  out  the  accidental  and  experimental  crimi- 
nals, there  is  a  much  closer  relation  between  all  law- 
breakers than  the  public  and  our  legislators  seem 
to  suppose.  The  man  who  adulterates  his  milk  to 
make  a  little  extra  money  is  in  the  same  class  with 


WHO  AKE  THE  REAL  CRIMINALS?     23 

the  financial  swindler.  One  waters  his  milk,  the 
other  his  stock.  The  same  underhanded  desire  to 
better  one 's  self  at  the  expense  of  one 's  neighbor  is 
the  moving  cause  in  each  case.  The  forger  belongs 
to  the  class  whose  heads  the  criminologists  delight  to 
measure,  but  they  would  not  measure  your  milk- 
man's. The  man  who  steals  your  purse  is  a  felon  and 
a  subject  of  scientific  investigation  and  discussion; 
the  man  who  forges  a  trade-mark  commits  only  a 
misdemeanor  and  excites  no  psychological  interest. 
But  they  are  criminals  of  exactly  the  same  type. 

The  "  crime-is-a-disease  "  theory  has  been  worked 
entirely  too  hard.  It  is  a  penologic  generality  which 
does  not  need  any  truckling  to  popular  sentimen- 
tality to  demonstrate  its  truth.  But  there  are  as 
many  sorts  of  this  "  disease  "  as  there  are  kinds  of 
crime,  and  some  varieties  would  be  better  described 
by  other  and  less  euphemistic  names.  Crime  is  no 
more  a  disease  than  sin,  and  the  sinners  deserve  a 
good  share  of  the  s^Tupathy  that  is  at  present  wasted 
on  the  criminals.  The  poor  fellow  who  has  merely 
done  wrong  gets  but  scant  courtesy,  but  once  jerk 
him  behind  the  bars  and  the  women  send  him  flowers. 
If  crime  is  a  disease,  sin  is  also  a  disease,  and  we 
have  all  got  a  case  of  it.  It  is  strange  that  there  is 
not  more  *  *  straight  talk"  on  this  subject.  Every  one 
of  us  has  criminal  propensities, — that  is  to  say,  in 
every  one  of  us  lurks  the  elemental  and  unlawful  pas- 
sions of  sex  and  of  acquirement.  It  is  but  a  play  on 
words  to  say  that  the  man  who  yields  to  his  inclina- 
tions to  the  extent  of  transgressing  the  criminal 
statutes  is  ** diseased."  Up  to  a  certain  point  it  is 
his  own  business,  beyond  it  becomes  ours,  and  Ke 
transgresses  at  his  peril. 


24  THE  PEISONER  AT  THE  BAR 

The  ordinary  criminal  Hsually  is  such  because  he 
** wants  the  money'';  he  either  does  not  like  to  work 
or  wants  more  money  than  he  can  earn  honestly.  He 
has  no  *  irresistible  impulse''  to  steal, — ^he  steals 
because  he  thinks  he  can  ^^get  away  with  it." 

The  so-called  professional  thief  is  usually  one  who 
has  succeeded  in  so  doing  or  who,  having  been  con- 
victed of  larceny,  finds  he  cannot  live  agreeably  other 
than  by  thieving;  but  the  man  is  no  less  a  profes- 
sional thief  who  systematically  puts  money  in  his 
pocket  by  dishonest  and  illegal  methods  in  business. 
The  fact  that  it  is  not,  in  the  ordinary  sense,  his 
"  sole  occupation  "  does  not  affect  the  question  at  all. 
Indeed,  it  would  be  difficult  for  one  whose  business  life 
was  permeated  by  graft  to  refute  the  general  allega- 
tion that  his  "  sole  occupation  "  was  criminal.  Grant- 
ing this,  your  dishonest  business  man  fulfils  every  re- 
quirement of  Mr.  Warner's  definition,  for  he  "  preys 
upon  society  and  is  [secretly]  at  war  upon  it."  He 
may  not  be  an  "  outlaw,"  but  he  should  be  one  under 
any  enlightened  code  of  criminal  laws.* 

There  is  no  practical  distinction  between  a  man 
who  gets  all  of  a  poor  living  dishonestly  and  one 
who  gets  part  of  an  exceedingly  good  living  dishon- 
estly. The  thieving  of  the  latter  may  be  many  times 
more  profitable  than  that  of  the  former.  So  long  as 
both  keep  at  it  systematically  there  is  little  to  choose 
between  the  thief  who  earns  his  livelihood  by  picking 
pockets  and  the  grocer  or  the  financier  who  swindles 
those  who  rely  upon  his  representations.  The  man 
who  steals  a  trade-mark,  counterfeits  a  label,  or  adul- 
terates food  or  drugs,  who  makes  a  fraudulent  as- 
signment of  his  property,  who  as  a  director  of  a  cor- 

*  Cf .  "Unpunished  Commercial  Crime"  in  ** Moral  Overstrain,"  by 
G.  W.  Alger.     Houghton,  Mifflin  &  Co.,  1906. 


WHO  AEE  THE  EEAL  CBIMINALS?     25 

poration  declares  an  unearned  dividend  for  the  pur- 
pose of  selling  the  stock  of  himself  and  his  associates 
at  an  inflated  value,  who  publishes  false  statements 
and  reports,  makes  illegal  loans,  or  who  is  guilty  of 
any  of  the  thousand  and  one  dishonest  practices 
which  are  being  uncovered  every  day  in  the  manage- 
ment of  life  insurance,  banking,  trust,  and  railroad 
companies,  is  precisely  as  ^^reaP'  a  criminal  as  one 
who  lurks  in  an  alley  and  steals  from  a  passing 
wagon.  Each  is  guilty  of  a  deliberate  violation  of 
law  implying  conscious  wrong,  and  each  commits  it 
for  essentially  the  same  reason. 

Yet  at  the  present  time  the  law  itself  recognizes  a 
fictitious  distinction  between  these  crimes  and  those 
of  a  more  elementary  sort.  The  adulteration  of 
foods,  the  theft  of  trade-marks,  stock-jobbing,  cor- 
poration frauds,  and  fraudulent  assignments  are  as 
a  rule  only  misdemeanors.  The  trouble  is  that  we 
have  not  yet  adjusted  ourselves  to  the  idea  that  the 
criminal  who  wears  a  clean  collar  is  as  dangerous 
as  one  who  does  not.  Of  course,  in  point  of  fact 
he  is  a  great  deal  worse,  for  he  has  not  the  excuse  of 
having  a  gnawing  at  his  vitals. 

If  a  rascally  merchant  makes  a  fraudulent  convey- 
ance of  his  property  and  then  **fails,"  although  he 
may  have  secreted  goods  worth  fifty  thousand  dol- 
lars, the  punishment  of  himself  and  his  confederate 
is  limited  to  a  year  in  the  penitentiary  and  a  thou- 
sand dollars  fine,  while  if  a  bank  cashier  should  steal 
an  equivalent  amount  and  turn  it  over  to  an  ac- 
complice for  safe  keeping  he  could  receive  ten  years 
in  State's  prison.  Even  in  this  last  case  the  re- 
ceiver's punishment  could  not  exceed  five  years. 
Thus  Eobert  A.  Ammon,  who  was  the  sole  person 


26  THE  PRISONEE  AT  THE  BAE 

to  profit  by  the  notorious  "  Franklyn  Syndicate,"  * 
when  convicted  of  receiving  the  proceeds  of  the 
fraud,  could  be  sentenced  to  only  five  years  in  Sing 
Sing,  while  his  dupe,  Miller,  who  sat  at  the  desk  and 
received  the  money,  although  he  acted  throughout  by 
the  other's  advice  and  counsel,  in  fact  did  receive 
a  sentence  of  ten  years  for  practically  the  same 
offence.  However  inequitable  this  may  seem,  what 
inducements  are  offered  in  the  field  of  fraudulent 
commercial  activity  when  a  similar  kind  of  theft  is 
punishable  by  only  a  year  in  the  penitentiary? 

One  can  hardly  blame  such  picturesque  swindlers 
as  ** Larry''  Summerfield,  who  saw  gigantic  financial 
and  commercial  frauds  being  perpetrated  on  every 
side,  while  the  thieves  who  had  enriched  themselves 
at  the  expense  of  a  gullible  public  went  scot-free,  for 
wanting  to  participate  in  the  feast.  Almost  every 
day  sees  some  new  corporation  brought  into  being, 
the  only  object  of  which  is  to  enable  its  organizers 
to  foist  its  worthless  stock  among  poorly  paid  clerks, 
stenographers,  trained  nurses,  elevator  men  and 
hard-working  mechanics.  The  stock  is  disposed  of 
and  the  *^ corporation"  (usually  a  copper  or  gold 
mining  enterprise)  is  never  heard  of  again.  Appar- 
ently if  you  do  the  thing  correctly  there  can  be  no 
**come  back."  Accordingly  Summerfield  and  his 
gang  of  *^sick  engineers"  hawked  through  the  town 
nearly  eighty  thousand  dollars '  worth  of  the  securi- 
ties of  the  Horse  Shoe  Copper  Mining  Company, 
which  owned  a  hole  in  the  ground  in  Arizona.  It  was 
all  done  under  legal  advice  and  was  undoubtedly  be- 
lieved to  be  within  the  letter  of  the  law.  But  there 
were  a  few  unnecessary  falsehoods,  a  few  slips  in 
the  schedule,  a  few  complainants  who  would  not  be 

*  See  "True  Stories  of  Crime,"  referred  to  swpra,  p.  15. 


WHO  ARE  THE  REAL  CRIMINALS?     27 

placated,  and  ^* Larry''  found  himself  in  the  toils. 
He  was  convicted  of  grand  larceny  in  the  first  degree, 
secured  a  certificate  of  reasonable  doubt  and  gave 
bail  in  a  very  large  amount.  Within  a  short  time 
he  was  re-arrested  for  working  the  same  game 
upon  an  unsuspecting  southerner.  This  time  his 
bail  was  increased  to  thirty  thousand  dollars.  It  was 
not  long  after  the  investigations  into  the  Ship- 
Building  Trust  scandal  and  New  York  had  been 
edified  by  seeing  the  inside  workings  of  some  very 
high  finance.  After  his  temporary  release  Summer- 
field  strolled  over  to  Pontin's  restaurant  for  lunch, 
where  he  sat  down  at  a  table  adjoining  one  occupied 
by  the  assistant  district  attorney  who  had  prosecuted 
and  convicted  him. 

*^How  are  you,  Mr.  V^  inquired  ** Larry" 

with  his  usual  urbanity.    *  *  How  are  things  1 ' ' 

*^So  so,"  replied  the  prosecutor,  amused  at  the 
nonchalance  of  a  man  who  might  reasonably  expect 
to  be  in  Sing  Sing  within  three  months.  *' How's 
business?" 

**0h,  pretty  good,"  returned  Larry.  '^You  know 
there  is  a  sucker  born  every  minute." 

**I  should  think  after  your  conviction  you  would 
have  had  sense  enough  to  keep  out  of  swindling  for 
a  while,"  continued  the  assistant. 

*^ Swindling!"  exclaimed  Summerfield.  ** Swin- 
dling no  thin' !  My  lawyer  says  I  didn't  commit  any 
crime.  Didn't  the  Supreme  Court  say  there  was  a 
reasonable  doubt  in  my  case?  Well,  I'm  just  giving 
myself  the  benefit  of  it, — that's  all.  I'm  entitled  to 
it.    How  about  those  Ship-Building  fellers?" 

The  '^Ship-Building  fellers"  have  never  been  con- 
victed of  any  wrong-doing.   Perhaps  they  committed 


28  THE  PEISONER  AT  THE  BAR 

no  crime.  Summerfield  has  three  years  more  to 
serve  in  Sing  Sing.* 

In  this  connection  the  reader  will  recall  the  attitude 
of  the  inhabitants  of  Lilliput  as  chronicled  by  Gulli- 
ver.—" They  look  upon  fraud  as  a  greater  crime  than 
theft,  and  therefore  seldom  fail  to  punish  it  with 
death ;  for  they  allege  that  care  and  vigilance,  with  a 
very  common  understanding,  may  preserve  a  man's 
goods  from  theft,  but  honesty  has  no  defence  against 
superior  cunning;  .  .  .  the  honest  dealer  is  always 
undone,  and  the  knave  gets  the  advantage.  I  remem- 
ber when  I  was  once  interceding  with  the  king  for  a 
criminal  who  had  wronged  his  master  for  a  great 
sum  of  money,  which  he  had  received  by  order,  and 
ran  away  with;  and  happening  to  tell  his  Majesty  by 
way  of  extenuation  that  it  was  only  a  breach  of  trust, 
the  Emperor  thought  it  monstrous  in  me  to  offer  as  a 
defence  the  greatest  aggravation  of  the  crime;  and 
truly  I  had  little  to  say  in  return,  further  than  the 
common  answer,  that  different  nations  had  different 
customs ;  for,  I  confess,  I  was  heartily  ashamed." 

Any  definition  of  the  criminal  class  which  limits  it 
to  those  who  "  make  their  living  "  by  crime  is  inade- 
quate and  begs  the  question  entirely.  There  is  no 
choice  between  the  grafter  and  the  "professional" 
thief,  the  boodler  and  the  bank  robber.  They  are  all 
"  real "  criminals.  One  is  as  "  diseased  "  and  "  de- 
generate "  as  the  other.  Every  reversed  conviction 
of  a  "  grafter  "  lowers  a  peg  the  popular  respect  for 
law.  The  clerk  in  the  comer  grocery  in  Dakota  feels 
the  wireless  influence  of  the  boodler  in  St.  Louis,  and 

*  Since  the  publication  of  this  book  Summerfield  has  been  discharged 
from  prison,  having  earned  his  parole  by  exemplary  conduct.  He  has 
gone  West  to  lead  a  new  and  better  life,  and  there  is  reason  to  believe 
that  he  will  succeed  in  doing  so* 


WHO  ARE  THE  REAL  CRIMINALS?      29 

the  "  successful "  failure  in  New  York  sets  some  fel- 
low thinking  in  San  Francisco. 

The  so-called  degenerate  and  professional  crim- 
inals constitute  a  very  small  fraction  of  the  law- 
breakers and  it  is  not  from  either  class  that  we  have 
most  to  fear.  Our  real  danger  lies  in  those  classes 
of  the  population  who  have  no  regard  for  law,  if  not 
an  actual  contempt  for  it,  and  who  may  become 
criminals,  or  at  least  criminal,  whenever  any  satis- 
factory reason,  coupled  with  adequate  opportunity, 
presents  itself.  From  this  class  spring  the  experi- 
mental criminals  of  every  sort,  who  in  time  become 
** professionals,*'  and  from  it  the  embezzler,  the 
stock  jobber,  the  forger  and  business  thief.  From 
it  as  well  are  largely  recruited  those  who  commit 
the  crimes  of  violence  which,  however  undeservedly, 
give  the  United  States  such  an  unenviable  place  upon 
the  tables  of  the  statisticians.  From  it  spring  the 
'^fellow  who  does  not  care''  or  who  **will  take  a 
chance,"  the  dynamiter,  the  man  who  is  willing  to 
*Hurn  a  trick"  at  a  price,  and  all  those  who  need  the 
strong  arm  of  the  law  to  restrain  them  from  yielding 
to  their  entirely  normal  evil  inclinations. 

The  man  who  deliberately  violates  the  law  by 
doing  that  which  he  knows  to  be  wrong  is  a  real 
criminal,  whether  he  be  a  house-breaker,  an  adulter- 
ator of  drugs,  the  receiver  of  a  fraudulent  assign- 
ment or  a  trade-mark  thief,  an  insurance  ** grafter," 
a  bribe  giver,  or  a  butcher  who  charges  the  cook's 
commission  against  next  Sunday's  delivery.  The 
writer  fails  to  see  the  slightest  valid  distinction  be- 
tween them  and  believes  it  should  be  made  possible 
to  punish  them  all  with  equal  severity.     There  is 


30  THE  PRISONER  AT  THE  BAR 

no  reason  why  one  should  be  a  felon,  another  guilty 
of  only  a  misdemeanor,  while  still  another  is  guilty 
of  nothing  at  all.  The  cause  of  crime  is  our  general 
and  widespread  lack  of  respect  for  law,  and  this  in 
turn  is  largely  due  to  the  unpunished,  and  often  un- 
punishable, dishonesty  which  seems  to  permeate 
many  phases  of  commercial  activity.  Diogenes 's 
job  is  still  vacant. 


CHAPTER  in 

THE  ARREST 

To  most  of  us  modest  folk  a  police  oflficer  looks 
not  an  inch  less  than  eight  feet  in  height, — and 
his  blue  coat  and  brass  buttons  typify  the  majesty 
and  inflexibility  of  the  law.  At  his  most  trivial  ges- 
ture the  coachmen  rein  in  their  curvetting  steeds 
upon  the  crowded  thoroughfare,  and  at  his  lightest 
word  the  gaping  pedestrian  obediently  ** moves  on.'' 
When  necessity  compels  we  address  him  deprecat- 
ingly  and,  as  it  were,  with  hat  in  hand,  and  if  he 
deign  to  listen  to  us,  and  still  more  if  he  condescend 
to  reply,  we  thrill  with  pride.  We  experience  a  cer- 
tain surprise  that  he  has  seen  fit  to  give  heed  to  us 
at  all  and  has  not,  instead,  ordered  us  roughly  about 
our  business  with  threatening  mien  and  uplifted 
club.  That  he  has  rendered  us  assistance  fills  us 
with  humble  gratitude.     One  feels  like  Dr.  Holmes, 

"  How  kind  it  was  of  him 
To  mind  a  slender  man  like  me! 
He  of  the  mighty  limb!  " 

It  rarely  occurs  to  us  that  these  stomachic  Titans 
are  in  fact  our  servants  and  that  they  have  no  au- 
thority save  that  which  they  have  received  from  our- 
selves,— that,  horrible  thought!  they  wear  our  liv- 
ery as  assuredly  as  does  Jeames  or  Wilkins.  Why 
do  these  big  men  patrol  the  streets  and  order  us 

31 


32  THE  PRISONER  AT  THE  BAR 

about  ?  Simply  because  in  these  busy  days  the  ordi- 
nary citizen  has  neither  time  nor  inclination  to  at- 
tend to  his  own  criminal  business,  and  because  it  is 
better  upon  the  whole  for  the  State  to  attend  to  it 
for  him. 

Eight  hundred  years  ago  the  punishment  of  crime 
was  a  matter  of  private  vengeance  gradually  evolv- 
ing itself  into  the  criminal  procedure  of  modern 
English  law.  The  injured  citizen  took  his  appeal 
**to  the  county''  and  fought  it  out  with  his  wrong- 
doer either  personally  or  by  proxy.  The  idea  was, 
originally,  that  the  man  who  had  been  injured  ought 
to  have  his  revenge,  and  criminal  justice  in  Eng- 
land even  to-day  savors  for  this  reason  somewhat 
of  private  litigation.  Of  course,  nowadays,  crime  is 
punished  on  the  theory  that  the  public  has  been 
injured;  and  that  not  only  does  the  safety  of  the 
community  require  that  a  repetition  of  the  same 
crime  by  the  same  offender  should  be  prevented, 
but  also  that  an  example  should  be  made  of  the 
evil-doer  as  a  lesson  to  others.  Be  this  as  it  may, 
vengeance  and  not  public  spirit  is  still  the  moving 
cause  of  ninety  per  cent  of  all  prosecutions  for 
crime. 

Just  as  the  right  to  apprehend  a  wrong-doer  was 
an  inherent  right  at  the  common  law  of  every  free- 
born  English  subject,  it  is  our  inherent  right  to-day, 
modified  or  extended  by  the  statute  law  of  the  sev- 
eral States,  and,  save  where  a  court  of  justice  has 
issued  its  warrant  and  commands  its  agents  to  ap- 
prehend the  party  named  therein,  one  person  has 
substantially  the  same  right  as  another  to  arrest  a 
criminal,  even  if  that  other  be  an  officer  of  the  law. 

The  policeman  has  no  greater  rights  in  the  mat- 


THE   ARREST  33 

ter  of  preventing  crime  or  arresting  evil-doers  than 
the  citizen.  He  is  merely  hired  by  the  citizen  to  do 
it  for  him.  The  only  difference  is  that  it  is  the 
duty  of  the  officer  by  virtue  of  his  position  to  make 
arrests,  just  as  it  is  that  of  the  fireman  to  extinguish 
fires.  Yet  it  is  imdoubtedly  the  fact  that  nine-tenths 
of  us  really  believe  that  the  policeman's  blue  coat, 
helmet,  and  club  invest  him  with  some  sacred  and 
peculiar  authority  of  his  own.  If  every  citizen 
recognized  the  fallacy  of  this  idea,  and  if  some 
elementary  instruction  in  such  matters  were  given 
in  the  public  schools,  even  at  the  sacrifice  of  clay 
modelling  and  decorative  art,  it  might  add  much  to 
the  spirit  of  independence  and  to  the  practical  effi- 
ciency of  the  coming  generation.  We  are  slaves  to 
the  magic  of  the  word  ** police."  We  imagine  that 
without  a  representative  of  the  law  we  can  do 
nothing. 

Of  course  we  know  in  general  that  we  may  defend 
the  persons  and  protect  the  property  of  ourselves 
and  others  by  the  exercise  of  reasonable  force. 
Beyond  this  rather  vague  principle  we  are  not  pre- 
pared to  go.  Where  the  situation  offers  no  par- 
ticular inconvenience  we  are  ready  to  do  our  part, 
but  if  anything  disagreeable  is  going  on  we  prefer 
to  be  excused.  We  are  out  of  the  habit  of  doing  the 
simplest  police  duty.  Most  of  us  would  have  enough 
public  spirit  to  summon  an  officer  if  a  felony  were 
being  committed  before  our  very  eyes,  provided  we 
could  do  so  without  making  ourselves  ridiculous, 
but  few  of  us,  the  writer  fancies,  would  join  the  hue 
and  cry  after  a  pickpocket  unless  ours  happened  to 
be  the  pocket  he  had  picked.  We  leave  that  to  those 
whose  natural  bellicosity  is  greater  and  who  do  not 


34  THE  PEISONER  AT  THE  BAR 

object  to  being  undignified.  It  is  nevertheless  true, 
however  unpleasant  the  thought  may  be,  that  at  any 
moment  we  may  find  ourselves  in  the  centre  of  a 
whirlpool  of  events  where  individual  action  on  our 
part  will  be  necessary  unless  we  are  willing  to  allow 
some  vicious  and  cruel  violation  of  the  law  to  go 
unpunished.  Such  exigencies  may  run  all  the  way 
from  the  malicious  beating  of  an  overloaded  horse 
to  the  garrotting  of  a  feeble  old  man.  Our  efficiency 
on  such  occasions  might  be  represented  by  a  fraction, 
of  which  our  physical  capacity  would  be  the  numer- 
ator and  our  disinclination  the  denominator,  but 
obviously,  to  make  the  formula  complete,  this  would 
have  to  be  multiplied  by  another  representing  our 
knowledge  of  our  rights. 

Suppose  for  example  that  Mr.  Ordinary  Citizen  on 
a  nocturnal  ramble  should,  at  about  three  o'clock  in 
the  morning,  observe  some  ill-favored  person  with  a 
heavy  bag  in  his  hand,  furtively  making  his  exit  from 
the  area  door  of  a  stylish  mansion  in  the  residential 
district.  What  should  he  do  I  What  would  you  do  ? 
Without  discussing  this  embarrassing  question,  does 
the  reader  know  what  he  would  have  a  right  to  do? 
The  chances  are  largely  in  favor  of  his  being  obliged 
to  answer  this  question  in  the  negative.  Indeed,  our 
indifference  to  the  unexpected  is  so  great  that  we 
are  generally  mute  and  helpless  in  the  face  of  any 
unusual  situation  where  anybody's  rights  are  con- 
cerned. We  hesitate  to  act  without  the  advice  of 
counsel,  and  in  the  meantime  the  burglar  has  made 
his  escape! 

In  the  State  of  New  York  and  generally  in  this 
country,  any  person,  whether  he  be  an  officer  of  the 
law  or  not,  may  make  an  arrest,  without  a  warrant, 


THE   AEREST  35 

for  any  crime,  of  any  grade,  actually  committed  in 
his  presence.  It  makes  no  difference  whether  the 
offence  be  that  of  spitting  in  a  street-car  or  murder 
in  the  first  degree,  the  offender  may  be  haled  before 
a  magistrate  by  any  one  who  has  seen  him  com- 
mit it. 

But  the  statutes  governing  the  right  of  arrest, 
while  extensive  enough  to  safeguard  the  public  in- 
terest, are  carefully  limited  to  prevent  arbitrary 
interference  with  the  liberty  of  innocent  persons. 
The  law,  therefore,  makes  it  a  positive  condition 
that  before  any  one,  whether  he  be  citizen  or  officer, 
may  arrest  another  for  a  felony  not  committed  in 
his  presence  the  felony  must  in  fact  have  been  com- 
mitted. Thus  the  right  to  apprehend  a  suspected 
wrong-doer  is  invoked  at  the  peril  of  him  who  seeks 
to  exercise  it.  If  no  felony  has  been  committed  the 
arrest  is  illegal. 

In  one  respect  only  does  the  law  recognize  any 
difference  between  the  private  citizen  and  the  public 
officer  paid  to  keep  the  peace, — if  a  felony  has  in 
fact  been  committed,  the  officer  may  arrest  any  one 
who  he  has  reasonable  ground  to  believe  is  the 
guilty  party,  while  a  citizen  may  arrest  only  the 
person  who  is  actually  guilty.  Thus  the  citizen  must 
guarantee  not  only  the  commission  of  the  crime  but 
the  identity  of  the  criminal,  while  the  officer,  so  long 
as  the  law  has  actually  been  violated,  may  take  a 
chance  as  to  the  identity  of  the  perpetrator  of  the 
offence. 

Now,  the  police  invariably  interpret  the  law  to 
mean  that  they  may  arrest  anybody  who  they  have 
reasonable  cause  for  believing  has  committed  a 
felony, — but  of  course  the  statute  gives  them  no  such 


36  THE  PEISONER  AT  THE  BAR 

power.*  The  felony  must  have  been  committed;  the 
"  reasonable  cause  "  refers  only  to  the  identity  of  the 
criminal.  This,  however,  does  not  worry  the  aver- 
age policeman  at  all. 

He  sees  "  Mr.  0.  C.'s  "  burglar  coming  out  of  the 
area  with  his  bag,  promptly  pounces  upon  him  and 
hales  him  off  to  the  precinct  house  in  spite  of  the  bur- 
glar's protests  and  expletives.  If  the  burglar  prove 
refractory  he  is  clubbed  into  submission,  or  if  he  at- 
tempt to  run  he  may  be  shot  in  the  leg.  Now  sup- 
pose that  on  reaching  the  police  station  the  burglar 
turns  out  not  to  be  a  burglar  at  all  but  the  family 
doctor?  Or  a  late  caller  upon  the  cook!  Or  a  gen- 
tleman who  has  mistaken  some  one's  else  area  for 
his  own?  Of  course  no  felony  has  been  committed. 
The  policeman  had  no  right  to  make  the  arrest. 
Assuming  that  the  house  had  been  burglarized,  the 
officer  beyond  a  doubt  had  reasonable  cause  for  a 
hastily  formed  opinion  that  the  man  in  the  area 
was  the  guilty  party  and  had  a  right  to  make  the 
arrest,  but  in  law  he  makes  this  assumption  at  his 
peril.  If  he  is  wrong  the  victim  has  a  good  cause 
of  action  against  the  policeman  for  false  arrest. 
But  the  execution  following  his  civil  judgment 
against  the  latter  will  probably  be  returned  nulla 

*An  attempt  has  apparently  been  made  by  the  legislature  of 
New  York  State  to  enlarge  the  powers  of  the  police  during  the  night- 
time bv  giving  them  authority  to  arrest  "on  reasonable  suspicion  of 
felony."  The  statute  (Penal  Code)  reads  as  follows:  "Section  179. 
May  arrest  at  night,  on  reasonable  suspicion  of  felony. 

"He  may  also,  at  night,  without  a  warrant,  arrest  any  person  whom 
he  has  reasonable  cause  for  believing  to  have  committed  a  felony,  and 
is  justified  in  making  the  arrest,  though  it  afterwards  appear  that 
a  felony  had  been  committed,  but  that  the  person  arrested  did  not 
commit  it." 

This  statute  clearly  stultifies  itself.  The  writer  is  not  aware  of 
any  judicial  interpretation  of  its  meaning  up  to  the  present  time. 


THE   AREEST  37 

bona  by  the  sheriff,  and  he  will  have  to  pay  for  his 
own  medical  treatment  and  legal  advice. 

Now  let  us  see  in  what  position  is  0.  C,  who  is  not 
a  peace  officer,  when  he  discovers  the  suspicious  fig- 
ure in  the  area.  He  may  lawfully  make  an  arrest, 
although  he  has  not  seen  the  crime  committed,  *  ^  when 
the  person  arrested  has  committed  a  felony.''  In 
other  words,  if  it  turns  out  that  no  crime  has  oc- 
curred, or  that  if  one  has  in  fact  been  perpetrated 
he  has  got  hold  of  the  wrong  man,  he  will  have  to 
patch  up  the  matter  and  very  likely  his  own  head  as 
best  he  can. 

We  will  assume  0.  C.  to  be  a  public-spirited  citi- 
zen and  that  he  forthwith  lays  hands  on  his  burglar 
and  reduces  him  to  subjection.  Having  done  so  he 
rings  the  front  door  bell  and  rouses  the  owner  of 
the  house,  who  in  turn  discovers  that  the  mansion 
has  been  burglarized.  They  then  investigate  the 
prisoner  and  find  that  he  is  a  commercial  traveller 
in  an  advanced  state  of  intoxication  who  has  ram- 
bled into  that  particular  area  by  accident.  0.  C. 
has  been  guilty  of  an  illegal  arrest.  Even  should 
it  prove  that  the  intruder  was  in  fact  a  burglar, 
but  not  the  right  burglar,  the  arrest  would  still  have 
been  without  authority.* 

*  In  People  y.  Hochstim  (36  Misc.,  562,  571)  it  is  said  that  "in  the 
matter  of  arresting  without  a  warrant,  whether  for  a  misdemeanor  or  for  a 
felony,  a  private  citizen  and  a  peace  officer  have  the  very  same  right 
and  power  under  the  law,  namely:  (1)  Either  may  without  a  warrant 
arrest  a  person  who  commits  any  crime,  whether  misdemeanor  or 
felony,  in  his  view,  and  (2)  either  may  without  a  warrant  arrest  any 
person  who  has  in  fact  committed  a  felony  although  not  in  his  view, 
but  (3)  neither  may  arrest  any  one  without  a  warrant  in  the  case  of  a 
felony  unless  the  alleged  felony  has  in  fact  been  committed.  If  no 
felony  has  in  fact  been  committed,  then  the  arrest  without  a  warrant 
is  in  every  case  unlawful  and  may  be  lawfully  resisted.  The  law  does 
not  justify  either  an  officer  or  a  private  citizen  in  arresting  for  a  felony 
without  a  warrant  on  mere  suspicion  or  information  that  a  felony  has 
been  committed.     If  either  act  without  a  warrant  on  groundless  sus- 


38  THE  PEISONER  AT  THE  BAR 

To  carry  the  illustration  a  little  further  let  us 
assume  that  in  each  case  a  burglary  has  been  com- 
mitted and  that  the  prisoner  is  the  guilty  party. 
What  can  the  officer  do,  and  what  can  "  0.  C."  do,  if 
his  quarry  attempt  to  escape  f 

Roughly  speaking,  a  person  lawfully  engaged  in 
arresting  another  for  a  felony  or  in  preventing  the 
escape  of  such  an  one  lawfully  arrested,  may  use  all 
the  force  necessary  for  the  purpose,  even  to  taking 
the  life  of  the  prisoner.* 

It  is  by  virtue  of  this  salutary  provision  of  law 
that  the  unscrupulous  policeman  gets  **  square  '' 
with  his  enemies  of  the  under  world.  When  the 
officer  clubs  the  ^^  drunk''  on  the  comer,  it  is  on  the 
pretext  that  the  latter  is  ^^ resisting"  arrest.  It  is 
practically  an  impossibility  to  prove  that  it  was  not 
justifiable  unless  there  be  eye-witnesses  to  what  has 
occurred,  and  an  officer  may  safely  be  guilty  of  a 
good  deal  of  physical  brutality  so  long  as  he  brings 
his  victim  to  the  station  house  under  actual  arrest 
for  some  alleged  offence.    It  is  only  when  the  victim 

Eicion  or  information  on  the  question  of  whether  a  felony  has  in  fact 
een  committed,  he  acts  at  his  peril.  Nothing  but  the  absolute  £act 
that  the  felony  has  actually  been  committed  will  suffice  to  justify  and 
protect  the  person  making  such  an  arrest,  whether  an  officer  or  a 
private  citizen.  But  if  a  felony  has  in  fact  been  committed,  the  law 
does  justify  an  officer,  but  not  a  private  citizen,  in  arresting  a  person 
therefor  without  a  warrant  *on  reasonable  cause  for  believing'  (to 
quote  the  words  of  the  statute)  that  such  person  is  the  one  who  com- 
mitted it.  In  a  word,  an  officer,  the  same  as  a  private  citizen,  is  not 
permitted  to  act  on  mere  grounds  of  belief  on  the  question  of  whether 
a  felony  has  in  fact  been  committed;  nothing  but  the  absolute  fact  that 
it  has  been  committed  will  suffice;  but  an  officer  is  permitted  to  act 
on  reasonable  cause  for  belief  on  the  question  of  whether  the  person 
arrested  is  the  person  who  committed  it.  All  of  this  is  plain  statute 
law  (Code  of  Criminal  Procedure,  sees.  177,  183)." 

*  A  distinction  exists  in  this  respect  between  misdemeanors  and  fel- 
onies. In  the  case  of  the  former  it  is  not  lawful  to  kill  a  prisoner  even 
if  his  escape  cannot  otherwise  be  prevented,  and  although  there  be  a 
warrant  for  his  apprehension.  In  the  case  of  a  felony  the  offender's 
life  may  be  taken  provided  there  is  absolute  necessity  for  so  doing  to 
prevent  his  escape.     Conraddy  v.  People,  5  Park  234. 


THE   ARREST  39 

of  such  an  assault  is  not  arrested  that  the  officer  finds 
himself  in  an  awkward  situation.  He  must  then 
explain  why  he  clubbed  the  citizen  unless  the  latter 
had  committed  some  offence  and  was  trying  to  resist 
arrest,  and,  if  so,  why  he  did  not  then  conduct  him 
to  the  station  house. 

There  is  a  story  told  of  an  old  veteran  upon 
the  force  who  was  heard  to  remark  to  a  com- 
panion as  they  left  court  together  after  the  acquittal 
of  an  ex-convict  on  the  charge  of  assaulting  the 
officer : 

^^Begorra,  Tom,  'twon't  be  long  before  1*11  be 
afther  arrestin'  the  cuss  agin,  and  whin  I  do,  pray 
God  that  he  resists  arrest!'* 

It  is  said  that  in  some  of  the  southwestern  states 
the  personal  right  to  make  an  arrest  at  times  re- 
sulted, practically,  in  the  privilege  of  shooting  cattle 
thieves  upon  sight.  The  foreman  would  send  out 
Jack  to  *4ook  for'*  cattle  thieves.  Jack  would  lie 
all  day  in  a  gully  and  when  Sonora  Slim  hove  in 
sight,  perhaps  on  an  entirely  lawful  errand,  would 
*4et  him  have  it.'*  Then  he  would  ride  leisurely 
over,  abstract  Sonora  *s  ^*gun,'*  discharge  it  a 
couple  of  times  and  throw  it  carelessly  upon  the 
ground.  Half  an  hour  later  he  would  appear  at  the 
ranch. 

*^ Sorry,  Bill,**  he  would  report,  *^but  I  caught 
Sonora  Slim  driving  off  three  of  our  two-year-olds. 
I  headed  him  off  and  says, 

**  *Look  here,  Sonora,  you*ve  got  some  of  our 
heifers  there.* 

**  *Go  to !*  says  Sonora  and  pulls  his  gun. 

**  *That*s  all  right,*  says  I.  *  You're  under 
arrest!* 


40  THE  PRISONER  AT  THE  BAR 

*^We  swapped  a  few  shots  and  I  had  to  drop  him 
to  prevent  his  escape. ' ' 

**A11  right,  Jack/'  the  foreman  would  reply, 
**we'll  ride  over  and  tell  the  sheriff  about  it.'* 

*^See  here,  sheriff,''  he  would  announce  on  their 
arrival,  **Jack  here  arrested  Sonora  Slim  stealin' 
our  cattle,  and  the  feller  resisted  arrest  and  Jack 
had  to  shoot  him.    Jack's  here  if  you  want  him. ' ' 

^^Yes,  sheriff,  here  I  am,"  Jack  would  say. 

The  sheriff  would  rub  his  forehead  and  reply : 

**No,  I  don't  want  you.  Sorry  you  had  to  kill 
him,  but  I'll  have  to  have  some  evidence  that  what 
you  say  ain't  true." 

It  may  be  well  to  suggest  that,  while  a  thorough 
knowledge  of  our  rights  is  always  desirable,  it  by 
no  means  follows  that  it  is  wise  to  invoke  them 
upon  every  occasion  when  we  observe  a  technical 
violation  of  the  law.  Regrettable  as  it  may  seem, 
no  police  force,  however  large,  could  arrest  all  the 
violators  of  every  law,  and  no  system  of  courts 
could  dispose  of  the  multitude  of  offenders.  We 
do  the  best  we  can  and  make  an  example  of  a  few, 
hoping  thus  to  persuade  the  others  to  be  good.  If 
every  citizen  undertook  to  exercise  his  right  of 
arresting  every  individual  whom  he  saw  committing 
petty  crime,  the  business  of  the  community  would 
come  to  a  standstill  and  the  magistrates'  courts 
would  be  hopelessly  congested  with  great  hordes  of 
prisoners,  irate  witnesses,  and  gratuitous  policemen. 
The  prisons  would  overflow  and  the  magistrates 
would  resign.  Moreover,  the  enforcement  of  such 
a  disused  and  unexpected  technical  right  would  lead 
to  immense  disorder  and  violence.  The  ignorant 
infractor  of  an  obscure  section  of  the  Penal  Code 


THE   AEREST  41 

would  rise  in  his  wrath  and  in  resisting  arrest 
become  guilty  of  assault  in  the  second  degree  or  of 
manslaughter.  It  is  probably  very  much  better 
that  trivial  offences  should  go  unpunished  than  that 
public  conveyances  and  thoroughfares  should  be 
made  the  scenes  of  violent  altercations  and  obstruc- 
tive volunteer  police  work.  Having  hired  a  certain 
class  of  persons  to  attend  to  this  business  for  us,  it 
is  better  to  leave  it  to  them  when  possible.  We 
need  the  best  police  force  that  we  can  get,  and  this 
naturally  depends  upon  the  efficiency  of  the  higher 
police  officials  who  hold  their  offices  by  appointment. 
An  active  interest  on  the  part  of  our  citizens  in  the 
betterment  of  municipal  conditions  through  the  puri- 
fication of  politics  is  probably  more  to  be  desired 
than  any  general  attempt  to  participate  in  the  ordi- 
nary duties  of  **the  man  on  the  beat." 


CHAPTER  IV 
THE  POLICE  COURT 

The  procedure  by  which  a  law-breaker  is  convicted 
for  his  offence  begins  with  his  arrest  and  ends  with 
the  formal  pronouncement  of  sentence  against  him 
after  he  has  been  declared  guilty.  Prior  to  his 
arrest  he  has  been  merely  a  criminal ;  after  sentence 
(or,  to  be  strictly  technical,  after  the  verdict  against 
him)  he  becomes  a  convict;  during  the  proceedings 
he  is  a  *  *  prisoner  at  the  bar. '  * 

Whatever  has  been  the  manner  of  his  arrest  he 
is  in  most  instances  taken  at  once  before  the  nearest 
magistrate  in  order  that  the  latter  may  inquire  into 
the  charge  against  him  and  determine  whether  upon 
the  evidence  there  is  reasonable  cause  to  believe  him 
guilty.*  If  the  arrest  takes  place  after  four  o^clock 
in  the  afternoon,  or  no  magistrate  happens  to  be 
holding  court,  the  prisoner  is  locked  up  until  the 
following  morning.f  If  he  be  charged  with  a  felony 
he  must  remain  in  confinement  until  the  magistrate 
admits  him  to  bail,  for  no  police  official  can  fix  or  re- 
ceive bail  in  such  cases :  if,  however,  he  has  been  ar- 
rested for  the  commission  of  a  misdemeanor  only, 
the  sergeant  on  duty  at  "  the  desk  "  must  fix  the  bail 
and  give  him  a  reasonable  opportunity  to  procure  it. 

*  Of  course  if  he  has  been  indicted  by  the  grand  jury  in  the  first  in- 
stance, he  is  arrested  on  a  ''bench  warrant"  issued  by  a  judge  of  the 
General  Sessions  and  placed  in  confinement  without  any  preliminary 
examination. 

t  This  condition  has  been  much  improved  in  New  York  City  by  the 
institution  of  the  "Night"  Court  in  which  one  magistrate  is  always  on 
duty.  All  minor  offenders  are  at  once  arraigned  before  him,  no  matter 
what  the  hour,  and  thus  may  be  disposed  of  without  undue  confinement. 

42 


THE  POLICE  COUET  '        43 

If  arrested  while  a  police  court  is  in  session  he  is 
entitled  to  an  immediate  hearing,  and  to  the  services 
of  counsel,  for  whom  the  magistrate  must  send,  free 
of  charge,  through  an  officer.  After  the  arrival  of 
counsel  or  after  waiting  a  reasonable  time  for  his  ap- 
pearance, the  magistrate  may  then  proceed  to  exam- 
ine into  the  case,  and  can  only  adjourn  the  hearing 
for  forty-eight  hours  at  a  time  for  "  good  cause,"  un- 
less at  the  request  of  the  defendant  himself. 

The  subjects  of  the  rights  of  apprehended  persons 
is  too  extensive  to  be  adequately  treated  in  a  few 
pages.  The  power  which  the  magistrate  may  arbi- 
trarily exercise  of  holding  persons  merely  "  suspect- 
ed "  of  crime  for  further  examination  is  very  great. 
Where  a  prisoner  is  brought  in  under  arrest  as  a 
fugitive  from  another  State  he  is  frequently  "  held  " 
(without  any  formal  charge  being  made  against  him) 
for  several  days  at  the  mere  telegraphic  request  of 
some  police  official  in  a  distant  city.  The  writ  of 
habeas  corpus  may  secure  his  release,  but  persons 
unjustly  arrested  on  "  suspicion  "  have  little  redress 
in  ordinary  cases,  whether  they  are  discharged  im- 
mediately or  held  for  long  periods.  While  no  tech- 
nical authority  exists  for  such  detentions  (the  right 
of  arrest  being  strictly  limited  as  set  forth  in  the  last 
chapter)  they  are  practically  necessary  to  prevent 
the  escape  of  dangerous  criminals.  "  Arrest  on  sus- 
picion "  is  a  euphemistic  description  of  a  technically 
illegal  proceeding,  which  is  universally  recognized  as 
necessary  for  the  protection  of  society.* 

*  "Many  persons  are  arrested  under  suspicious  circumstances,  such  as 
well-known  criminals  mysteriously  loitering  about  the  streets  at  night, 
or  frequenting  crowded  places,  or  persons  having  property  in  their  pos- 
session for  which  they  can  give  no  good  account,  nor  of  themselves. 
Frequently  such  an  arrest  is  the  first  step  in  the  detection  of  some  crime 


44 


THE  PEISONER  AT  THE  BAR 


The  police  court  is  the  great  clearing  house  of 
crime.  Inasmuch  as  all  persons  arrested,  whether 
innocent  or  guilty,  are  brought  there  together,  they 
should  naturally,  so  far  as  possible,  be  accorded  the 
benefit  of  the  doubt  as  to  their  guilt  in  the  treatment 
which  they  receive.  They  are  presumed  to  be  inno- 
cent, and  indeed  many  of  them  are,  until  a  jury  has 
declared  to  the  contrary.  However,  the  attitude 
generally  taken  towards  a  prisoner  in  a  police  court 
is  that  he  is  guilty  and  that  it  is  useless  for  him  to 
deny  it,  and  he  feels  the  discomfort  and  ignominy  of 
his  position  far  more  at  this  state  of  the  proceedings 
than  he  does  later,  when  he  is  accorded  more  indi- 
vidual importance.  As  a  rule  he  is  brought  into  a 
crowded,  stuffy  court  where  a  vociferous  pair  of 
shyster  lawyers  are  shouting  at  each  other's  wit- 
nesses and  the  magistrate  is  with  difficulty  trying  to 
preserve  order.  A  great  throng  of  complainants, 
defendants,  witnesses,  policemen,  lawyers  and  idlers 
fill  the  room,  and  the  prisoner  instantly  becomes  the 
centre  of  vision  for  all  eyes  as  the  officer  leads  him 

in  which  (after  investigation),  if  the  proper  complainant  is  found,  a  for- 
mal complaint  is  taken,  and  the  prisoner  is  held  for  trial.  In  many 
instances  such  an  arrest  prevents  the  commission  of  crime." 


Comparison  with  Previous  Years. 


Year. 

Number  Arraigned  and  Discharged. 

Males. 

Females. 

Total. 

1896 

2,335 
1,756 
1,628 
2,033 
2,023 
2,066 
2,337 
2,634 
3,734 
3,551 
5,483 
2,656 

120 
129 
154 
301 
293 
197 
200 
115 
224 
231 
180 
118 

2,455 
1,885 
1,782 

1897     

1898 

1899 

2,334 
2,316 
2,263 
2,537 
2.749 
3,958 
3,782 
5,663 

1900                  

1901 

1902 ^ 

1903 

1904 

1905 

1906 

1907 

2  774 

THE   POLICE    COURT  45 

up  to  the  clerk's  desk  and  makes  his  formal  accusa- 
tion. The  altercation  in  front  of  the  magistrate  is 
suspended  long  enough  for  the  latter  to  *^ commit'' 
the  defendant,  who  instantly  finds  himself  locked 
in  a  narrow  cell  where  he  must  remain  until  some 
friend  or  relation  has  had  an  opportunity  to  reach 
a  lawyer,  secure  a  bondsman,  and  compass  his 
release. 

What  he  must  naturally  feel  most  is  his  own  in- 
significance. He  is  merely  one  of  a  huge  multitude 
of  miserable  people  who  are  all  in  the  same  box. 
The  hours  until  his  lawyer  arrives  are  very  dark 
indeed, — ^particularly  as  he  probably  has  no  idea 
of  what  is  going  to  happen  to  him  in  the  meantime. 
If  he  be  a  poor  man  accused  of  drunkenness  or  dis- 
orderly conduct  he  may  be,  and  frequently  is,  sent 
to  the  island  before  he  has  any  adequate  oppor- 
tunity to  notify  his  family,  who  may  suffer  an  agony 
of  anxiety  before  they  discover  what  has  become  of 
him.  The  punishment  of  the  minor  offender  for 
trifling  breaches  of  the  peace  is  not  only  swift,  but  is 
characterized  by  a  certainty  unknown  to  that  which 
the  law  attaches  to  crimes  of  a  higher  order. 

The  police  court  has  sometimes  been  termed 
**The  Poor  Man's  Court  of  Appeals."  So  far  as 
this  implies  that  five  out  of  every  seven  defendants 
arraigned  there  are  summarily  disposed  of  and 
accept  the  decision  or  sentence  of  the  presiding 
judge  as  final,  and  that  the  same  number  of  ag- 
grieved persons  who  seek  justice  there  do  the  same, 
it  is  a  correct  description.  No  court  has  a  more 
direct  influence  for  good  or  evil,  or  for  the  creation 
of  a  respect  or  a  disregard  for  law.  For  an  over- 
whelming majority  of  our  citizens,  particularly  those 


46  THE  PRISONER  AT  THE  BAB 

of  foreign  birth  or  extraction,  it  is  the  only  court  of 
justice  in  existence.* 

There  may  be  higher  courts  or  higher  laws  but  they 
know  them  not.  To  them  the  magistrate  is  an  auto- 
crat. They  are  avenged  or  punished  by  virtue  of 
his  will  alone,  and  as  he  is  just  or  unjust,  honest  or 
corrupt,  so  do  they  come  to  regard  American  insti- 
tutions as  a  whole.  The  officers  of  the  precinct  are 
his  minions,  only  a  little  lower  in  majesty,  and  even 
more  terrible  and  implacable. 

When  it  is  considered  that  the  magistrates  in  the 
first  division  of  the  City  of  New  York  (namely,  the 
Boroughs  of  Manhattan  and  the  Bronx)  alone  dis- 
posed of  138,047  cases  in  the  year  1907,  and  that  in 
104,622  of  these  they  exercised  a  summary  jurisdic- 
tion over  the  liberty  of  the  prisoner,  with  power  in 
many  instances  to  inflict  severe  punishment,  it  will 
be  seen  that  the  importance  of  these  courts  cannot 
be  easily  overrated.  Including  the  defendants  ar- 
raigned in  the  "  Children's  Court "  and  before  certain 
judges  of  the  Special  Sessions  sitting  as  magistrates, 
there  were  149,494  persons  arrested  during  1907  in 
New  York  County  alone. 

The  summary  jurisdiction  of  the  police  judge  em- 
braces all  offences  classed  as  "  disorderly  conduct," 
violations    of    so-called    "  corporation   ordinances " 

*  The  nativity  of  the  persons  held  for  trial  in  1907  or  summarily  tried 
and  convicted  in  magistrates'  courts  was; 

United  States 30,261 

Ireland 8,061 

Germany 4,219 

England 1,044 

Scotland 473 

France 869 

Italy , 8,243 

Russia 9,254 

Greece 3,039 

Other  countries 5,790 

TotaJ 71,253 


THE   POLICE   COURT  47 

(such  as  peddling  without  a  license,  etc.),  infrac- 
tions of  the  ** Sabbath  law,"  the  disposition  of  per- 
sons alleged  to  be  insane,  vagrancy,  and  the  offence 
(not  recognized  by  any  statute)  of  being  a  **  suspi- 
cious person."  Any  person  whom  the  magistrate 
finds  guilty  of  any  of  these  charges  (except  the  last) 
he  may  fine  or  imprison.  It  is  quite  true  that  the 
defendant  may,  if  convicted,  take  an  appeal  to  the 
Court  of  General  Sessions  or  test  the  jurisdiction  of 
the  magistrate  by  a  writ  of  habeas  corpus,  but  the 
grounds  of  appeal  are  few,  and  the  victim  rarely  is 
aware  or  advised  of  his  rights  in  this  respect. 
Even  were  he  fully  informed,  his  purse  would  not 
usually  permit  of  further  proceedings,  unless  taken 
for  him  from  charity  by  some  outside  party  or  or- 
ganization. The  fact  that  there  were,  out  of  this 
multitude  of  cases,  but  one  hundred  and  fifty-nine  ap- 
peals taken  (of  which  only  seventy-seven  were  suc- 
cessful) speaks  for  itself. 

Besides  those  charged  with  the  offences  over 
which  the  magistrate  has  final  jurisdiction,  before 
him  come  all  persons  arrested  for  crimes  which  are 
triable  in  higher  courts.*  These  persons  he  must 
"hold  for  trial"  (either  for  the  court  which  tries 
misdemeanors  or  for  the  grand  jury)  or  discharge. 
Should  he  have  reasonable  ground  to  believe  that 
the  accused  has  committed  the  crime  alleged  he  is 
obliged  by  law  to  "  hold  "  him,  but  if  the  judge  sees 
fit  to  discharge  the  prisoner,  the  aggrieved  person 
has  no  appeal  and  his  only  alternative  is  to  try  to 
persuade  the  district  attorney  in  spite  of  the  decision 
of  the  magistrate  to  take  personal  action  either  by 

*  In  1905  the  number  of  {Persons  so  held  in  New  York  County  by  the 
magistrates  of  the  first  division,  was  36,340. 


48  THE  PRISONEE  AT  THE  BAR 

laying  the  matter  before  the  grand  jury,  or  in  cases 
of  misdemeanors  by  filing  an  information  in  the 
Court  of  Special  Sessions.  He  is  usually  unaware  of 
this  possibility  and  at  all  events  it  is  a  difficult  pro- 
ceeding, so  that  even  in  the  case  of  crimes  in  which 
the  magistrate  has  not  a  final  jurisdiction,  his  action, 
so  far  as  setting  free  the  prisoner  is  concerned,  is 
generally  a  conclusion  of  the  matter.  When  a  police 
judge  unwarrantably  discharges  a  prisoner  accused 
of  a  felony  the  complainant  rarely  takes  any  further 
steps  to  get  justice. 

The  enormous  power  wielded  by  what  people  are 
accustomed  to  call  **mere  police  judges'*  is  obvious 
when  we  realize  that  one  of  them  may  send  a  woman 
to  a  reformatory  for  three  years,  and  boys  to  similar 
institutions  for  the  same  period.  Their  jurisdiction 
is,  however,  strictly  confined  to  certain  classes  of 
offences ;  and  if,  for  example,  the  crime  charged  be 
^'larceny"  in  any  form  they  are  compelled  to  hold 
the  defendant  for  the  action  of  a  higher  court  even 
if  he  admit  his  guilt.  Thus  a  vagrant  who  is  caught 
begging  can  be  sent  away  for  six  months,  but  if  the 
same  man  steal  an  old  rug  from  a  door-step  or  a 
gunny-sack  from  a  wagon  he  must  willy  nilly  be  sent 
to  the  Tombs  to  await  a  trial  in  Special  Sessions. 
Now,  in  any  case  where  he  is  going  to  plead  guilty 
he  would  probably  vastly  prefer  to  have  his  case 
disposed  of  by  the  magistrate  and  have  done 
with  it. 

There  would  seem  to  be  good  reason  for  believing 
that  coincident  with  other  reforms  in  the  magis- 
trates' courts  their  original  jurisdiction  might  well 
be  extended  to  cases  of  petit  larceny  where  the  de- 
fendant admits  the  commission  of  the  offence.    A 


THE   POLICE   COURT  49 

deal  of  time,  money,  and  inconvenience  to  tlie  pris- 
oner might  be  saved.  The  present  situation  results 
in  a  tendency  on  the  part  of  the  judge  to  construe 
as  many  cases  as  he  can  of  ** petit  larceny'*  into 
** disorderly  conduct.*'  Very  often  a  trivial  theft 
is  accompanied  by  acts  which  make  it  perfectly 
proper  for  the  magistrate  to  overlook  the  larceny 
for  the  disorder.  Certainly  it  is  better  for  the 
offender,  where  possible,  to  be  classed  as  a  **  dis- 
orderly** rather  than  as  a  thief.  In  the  latter  case 
he  may,  with  the  stigma  thus  fastened  upon  him,  go 
forth  to  a  life  of  crime ;  in  the  first  he  would  never 
be  regarded  as  a  criminal.  This  jurisdiction  to  pun- 
ish any  act  or  omission  tending  to  create  a  breach 
of  the  peace  offers  a  boundless  opportunity  for  an 
arbitrary  judge  to  arrogate  to  himself  powers  which 
an  ignorant  or  helpless  offender  can  hardly  be  ex- 
pected successfully  to  defy.  If  illegally  **  commit- 
ted** his  only  redress  is  a  writ  of  habeas  corpus, 
which  probably  is  a  phrase  entirely  unintelligible  to 
him  and  which  will  cost  more  money  to  procure  than 
he  has  ever  had  at  any  one  time  in  his  existence. 

The  magistrates  might  also  be  given  jurisdiction 
to  impose  punishment  in  all  cases  of  **  simple  as- 
sault,** and  in  certain  cases  even  of  assaults  with 
weapons.  There  is  no  particular  reason  why,  if  the 
magistrate  can  send  an  old  woman  away  for  beg- 
ging, or  for  being  drunk  of  a  Saturday  night,  he  can- 
not be  trusted  to  punish  her  properly  for  hitting  her 
husband  over  the  head  with  a  hot-water  kettle. 
Moreover,  the  magistrate  before  whom  the  damaged 
party  hales  the  offender  is  able  to  see  with  his 
own  eyes  the  actual  extent  of  the  injuries  which 
have  been  inlflicted,  whereas,  by  the  time  the  case 


50  THE  PEISONER  AT  THE  BAR 

is  tried  before  the  judge  of  the  Sessions,  Dame 
Nature  has  usually  restored  the  victim  ^s  battered 
physiognomy  to  its  pristine  condition  of  refined 
elegance. 

No  one  could  fail  to  profit  by  a  day  spent  upon  the 
police-court  bench  watching  the  judge  exercise  his 
many  diverse  yet  not  inconsistent  duties,  which 
variously  include  those  of  magistrate,  lawyer, 
clergyman,  almoner,  arbitrator  of  domestic  difficul- 
ties, and  general  adviser.  He  will  begin  his  day's 
work,  which,  before  it  be  concluded,  will  have  re- 
quired him  to  pass  upon  anywhere  from  fifty  to 
eighty  cases,  by  disposing  of  a  long  line  of  drunks 
and  disorderlies  of  both  sexes.  Justice  is  plenti- 
fully tempered  with  mercy,  however,  and  the  un- 
pleasant business  is  soon  over.  Next  comes  the 
disposition  of  unfinished  business,  which  includes 
the  continuance  of  trials  not  concluded  on  the 
preceding  court  day.  These,  of  course,  embrace 
every  possible  oifence  known  to  the  law.  The  ex- 
traordinary number  of  petty  burglaries  is  sure  to 
attract  the  attention  of  the  spectator.*  Boy  after 
boy  is  brought  to  the  bar  charged  with  breaking  into 
a  tobacco  shop,  or  a  small  grocery,  or  a  room  used 
for  the  storage  of  merchandise,  push-carts  or  fruit. 
At  the  very  outside  the  value  of  the  plunder  cannot 
exceed  a  few  dollars. 

One  defendant,  his  head  heavily  bandaged,  is  half 
carried  to  the  bar  by  a  husky  officer  and  charged 
with  attempting  to  burglarize  the  shed  adjoining 
Isadore  Aselovitch  's  junk  store.  He  is  clearly  much 
the  worse  for  a  severe  clubbing.    **Izzy,*'  the  com- 

*  During   1907  there  were   arrested    1,669  persons  on   charges  of 
burglary,  of  whom  1,055  were  held  for  trial. 


THE  POLICE  COURT  51 

plainant,  exhibiting  an  iron  bar  several  feet  in  length 
and  weighing  upwards  of  twenty  pounds,  proudly 
claims  to  have  effected  the  arrest  of  the  defendant 
by  merely  giving  him  *  *  a  little  poke  mit  it. ' '  In  re- 
sponse to  the  interrogatories  of  the  magistrate, 
Izzy  explains  that  he  and  another  kept  their  junk 
in  a  certain  rear  room  and  from  time  to  time  noticed 
that  various  odd  pieces  of  iron  seemed  to  be  miss- 
ing. They  thereupon  concealed  themselves  behind  a 
pile  of  old  push-cart  wheels  and  waited  for  the 
thief.  After  several  hours  of  inactivity  they  finally 
heard  a  rattling  among  the  iron  and  discovered 
the  defendant  apparently  in  the  very  act  of  steal- 
ing a  crowbar.  Being  upon  his  hands  and  knees  he 
was  unable  to  offer  any  effectual  resistance  to  their 
combined  onslaught  and  barely  succeeded  in  escap- 
ing with  his  life.  His  cries  had  brought  an  officer 
who  had  arrested  him,  upon  Izzy's  complaint,  for 
attempted  burglary.  The  defendant  in  turn  had 
charged  the  two  with  felonious  assault,  alleging  that 
he  had  a  right  to  be  in  the  store-room,  inasmuch 
as  he  was  accustomed  to  leave  junk  there  himself. 
He  further  tearfully  asserts  that  he  is  a  rival  of 
Izzy's  in  the  push-cart  business,  which  accounts  for 
the  extreme  animosity  of  the  latter. 

**It  vas  a  lie,  your  honor,  chuge,''  urges  Izzy. 
**Dot  man  vas  a  purglar.  He  ain't  got  no  push-cart. 
Gif  him  ten  years,  chuge ! ' ' 

The  judge,  who  is  wise  in  his  generation,  fines 
*Hhe  burglar"  three  dollars  for  disorderly  conduct, 
to  the  intense  disgust  of  Izzy. 

*  *  Tree  dollars ! "  he  cries  with  fine  scorn.  *  *  Tree 
dollars  for  a  purglar !  I  vould  be  a  purglar  myself 
for  tree  dollars!'* 


52  THE  PRISONER  AT  THE  BAR 

Very  likely  the  next  case  will  be  that  of  a  small 
merchant  charged  with  obstructing  the  sidewalk 
with  his  boxes.  He  is  let  off  with  a  warning  or,  if 
it  be  a  second  offence,  with  a  small  fine.  Then  a 
couple  of  boys  will  be  brought  in  charged  with 
*  *  shooting  craps, ' '  and  on  their  heels  a  half -drunken 
driver  who  is  accused  by  a  little  girl  (having  on  an 
S.  P.  C.  A.  badge)  of  driving  an  overloaded  horse. 
The  crap  boys  are  let  go,  but  as  the  **cop''  agrees 
with  the  little  girl  that  the  driver  was  abusing  his 
horse  the  latter  is  ^^held''  for  Special  Sessions. 

While  these  matters  are  being  attended  to  a  great 
uproar  is  heard  and  a  large  crowd  forces  its  way 
into  the  court-room.  Above  the  clamor  the  wails 
of  a  young  Jewess  make  themselves  distinctly  audi- 
ble. The  judge  has  just  ordered  the  drunken  driver 
locked  up  and  is  all  ready  to  take  up  the  new  case. 
The  defendant,  a  slick,  pale-faced  young  Hebrew, 
loudly  proclaims  his  innocence  and  demands  an  im- 
mediate hearing.  No  time  is  lost,  for  the  parents  of 
the  girl  have  procured  a  lawyer  who  at  once  causes 
a  charge  of  robbery  to  be  entered.  The  girl,  hysteri- 
cally weeping,  tells  her  story.  Up  to  a  certain  point 
it  is  lucid  enough.  She  had  been  walking  along  the 
street  when  a  nice-looking  young  *' feller '*  had  ac- 
costed her  and  inquired  the  way  to  the  nearest  pawn- 
broker's.  While  they  were  conversing  pleasantly 
upon  this  subject  a  second  young  gentleman  had 
joined  them  and  asked  the  first  to  purchase  a  pair 
of  beautiful  diamond  earrings  which  he  exhibited. 
This  the  other  regretfully  had  explained  he  could 
not  do,  since  he  had  no  money  (being  even  then  on 
the  way  to  the  pawnbroker's).  The  diamonds  had 
glistened  and  sparkled  in  the  sunlight.     The  girl  had 


THE   POLICE   COUET  53 

asked  to  look  at  them  and  while  she  was  doing  so 
the  owner  had  suggested  that  perhaps  she  might 
like  to  purchase  them  herself,  giving  as  part  of  the 
consideration  her  own  modest  little  baubles.  This 
tempting  offer  she  says  she  refused,  on  the  ground 
that  she  did  not  know  the  young  gentleman.  She 
then  rapidly  states  that  the  two  set  upon  her,  struck 
her,  and  that  she  *'knew  no  more,'^  until  on  recover- 
ing her  senses  she  found  that  her  own  earrings  had 
disappeared  and  that  those  of  the  stranger  were  in 
her  ears. 

*^Hm!''  says  the  magistrate;  ^*and  do  you  say 
that  the  defendant  struck  you?'' 

*  *  Shure,  your  honor, ' '  replies  the  young  lady. 
'^Ajid  that  you  fainted  r' 

*  *  Shure,  your  honor. ' ' 

**Did  you  fallf  inquires  the  judge  sharply. 
**N — n — no,''  admits  the  complainant. 
*' Defendant  discharged,"  announces  the  magis- 
trate. 

*  *  Get  out  of  here,  all  of  you, ' '  orders  the  officer  at 
the  bridge.    **Get  along,  now!" 

The  explanation,  as  the  reader  already  guesses, 
is  simply  that  by  a  time-honored  trick  the  girl  has 
been  persuaded  by  an  oily-tongued  trickster  to 
exchange  her  own  earrings  for  his  worthless  ones. 
This  she  has  done  quite  voluntarily.  She  has  then 
hurried  home  only  to  find  that  her  newly  acquired 
gems  are  paste.  The  family  goes  into  a  paroxysm  of 
anger  and  lamentation.  The  nearest  lawyer  is  con- 
sulted, who,  of  course,  agrees  to  secure  the  return  of 
the  earrings.  They  pay  him  a  five-dollar  fee,  the  de- 
fendant is  sought  for  and  arrested,  and  in  her  eager- 
ness to  see  him  punished  and  to  obtain  her  property 


54  THE  PEISONER  AT  THE  BAR 

the  victim  swears  away  her  own  case.  Probably 
had  she  told  the  truth  the  defendant  could  have  been 
**held''  for  grand  larceny  by  false  pretences. 

These  proceedings  may  no  sooner  be  concluded 
than  perchance  a  giant  negro  is  brought  in  charged 
with  assault.  A  dozen  officers  bring  him  manacled 
to  the  bar,  while  a  crowd  of  reporters  follow  and 
gather  on  each  side,  notebook  in  hand.  It  appears 
that  the  prisoner  suddenly  ran  out  of  a  saloon,  drew 
a  revolver  and  began  an  indiscriminate  shooting. 
The  *  *  reserves ' '  were  called  out  and  three  policemen 
now  lie  dangerously  wounded  in  the  hospital.  He 
is  held  for  examination,  pending  a  possible  inquest 
by  the  coroner. 

Meantime  a  lank  youth  from  New  Jersey  listens 
vacantly  while  an  officer  accuses  him  of  abandoning 
a  horse  which  has  suddenly  expired  while  hai'- 
nessed  to  the  defendant's  truck  wagon.  He  pays 
a  fine  and  vanishes.  Two  young  Irish-Americann, 
mutually  damaged,  are  arraigned  for  *  ^  disorderl  j^ 
conduct.  *'  They,  too,  are  fined,  being  already  sub- 
stantially punished — ^by  each  other.  A  man  ac- 
cused of  ** Sunday  selling' '  follows  a  woman  who 
tells  a  pitiful  tale  of  how  her  husband  has  aban- 
doned her  and  her  five  little  ones.  Later  in  the 
day  the  husband  is  found  and  ordered  to  pay  her 
ten  dollars  per  week.  Two  retail  milk  dealers 
charged  with  adulteration  or  **  keeping  a  cow  in  an 
unhealthy  place,''  a  band  of  pickpockets  who  have 
been  caught  *^ working"  a  horse-car,  a  woman  ac- 
cused of  *  ^  soliciting, "  and  a  bartender  who  has 
allowed  a  *  *  slot  machine "  to  be  left  upon  the  prem- 
ises, give  place  to  a  vociferous  store-keeper  who  has 
caused  the  arrest  of  a  very  stout  man  for  the  lar- 


THE   POLICE   COURT  56 

ceny  of  four  pairs  of  trousers.  He  explains  loudly 
that  the  defendant  (who  weighs  at  least  325  pounds) 
came  into  the  store,  asked  to  see  some  *  ^  pants, ' '  and 
while  the  clerk  was  not  looking  stuffed  four  pairs 
of  these  articles  inside  his  waistband  and  made  his 
escape.  The  complainant  not  only  identifies  the  de-  * 
fendant  with  absolute  certainty  but  goes  so  far  as  to 
state  with  equal  positiveness  that  the  accused  now 
has  on  the  very  trousers  into  which  he  stuffed  the 
stolen  property.  Four  pairs  identical  in  size  and 
material  with  those  alleged  to  have  been  purloined 
are  produced  and  marked  in  evidence.  The  fat  man 
indignantly  denies  having  been  in  the  store  at  all. 
The  reporters  are  interested. 

** Gentlemen,''  says  the  judge,  *'I  appoint  you  a 
committee  to  conduct  the  defendant  to  my  private 
room  for  the  purpose  of  determining  whether  or  not 
you  can  stuff  these  articles  of  apparel  inside  his 
waistband. ' ' 

The  reporters,  followed  more  slowly  by  the  per- 
spiring defendant,  make  their  way  to  a  back  room, 
from  which  they  presently  emerge  to  announce 
through  their  spokesman  that  it  would  be  impos- 
sible to  thrust  any  object,  much  less  four  pairs 
of  trousers,  inside  the  band  of  the  defendant's 
trousers. 

In  the  interim  the  judge  has  been  settling  matri- 
monial difficulties,  giving  all  sorts  of  gratuitous  legal 
advice,  acting  as  arbitrator  over  the  question  of  the 
mutual  use  of  the  ** landings"  on  the  stairs  in  tene- 
ment houses,  issuing  warrants,  and  endeavoring  to 
find  an  opportunity  to  continue  the  hearing  in  a  com- 
plicated ** false  label"  case.  In  this  last  several 
rather  well-known  attorneys  are  retained,  who  stand 


56  THE  PEISONER  AT  THE  BAR 

about  disgustedly  while  the  more  immediate  business 
of  the  court  is  being  attended  to.  In  most  cases, 
however,  the  lawyers  are  hardly  likely  to  add  to  the 
general  reputation  of  the  profession  for  ability. 

The  inordinate  number  of  cases  which  the  magis- 
trates have  to  dispose  of  results  oftentimes  in  an 
inconclusive  method  of  hearing  charges  of  misde- 
meanors or  of  felonies,  which,  if  the  defendant  be 
held  at  all,  must  of  necessity  be  tried  in  a  higher 
court  or,  as  the  magistrates  say,  *'go  downtown." 
If  the  defendant  be  a  man  of  some  influence,  with 
enough  money  to  retain  a  boisterous  and  bully-rag- 
ging lawyer,  the  line  of  least  resistance  may  lead  the 
judge  almost  unconsciously  to  regard  the  case  as 
having  '* nothing  in  it.''  If,  on  the  other  hand,  the 
complainant  be  a  man  of  independence  and  insist- 
ence, with  perhaps  a  bit  of  a  pull,  it  is  much  easier 
to  **hold"  a  defendant  than  to  assume  the  responsi- 
bility of  *  *  turning  him  out. ' '  In  point  of  fact  some 
magistrates  are  prone  to  shift  the  responsibility  off 
their  own  shoulders  and  to  *^hold''  anyway.  Thus 
there  can  be  *^no  kick  coming''  so  far  as  they  are 
concerned.  There  are  also  cases  where,  rather  than 
take  the  time  for  a  careful  examination  of  the  case, 
the  magistrate  will  **hold,"  when,  if  he  had  really 
examined  into  it  with  the  necessary  care,  he  would 
find  that  there  was  no  reasonable  ground  for  his 
action.  Now  the  grand  jury  is  apt  to  find  an  indict- 
ment almost  as  a  matter  of  course,  and  the  defend- 
ant must  then  be  placed  on  trial  before  a  petit  jury. 
In  large  measure  this  is  the  reason  why  the  calendars 
of  the  criminal  courts  are  crowded  with  cases  which 
should  never  have  gone  beyond  the  police  court,  and 
why  prisoners  charged  with  homicide  often  lie  for 
months  in  the  Tombs  before  the  petty  business  of 


THE   POLICE   COURT  57 

fche  General  Sessions  can  be  cleaned  up  sufficiently 
to  allow  time  for  their  trial.  In  this  way  much  of 
the  work  which  should  be  done  by  the  police  judge  is 
cast  upon  the  already  over-burdened  petit  jury. 
The  evil,  however,  does  not  stop  there.  When  a 
petit  jury  finds  that  a  majority  of  the  cases  brought 
before  it  have  little  or  no  merit  it  frequently  gets 
the  idea  that  all  criminal  business  is  of  the  same 
character  and  that  it  is  empanelled  for  the  pur- 
pose of  a  general  jail  delivery.  After  a  jury  has 
** turned  out"  twenty  men  in  succession  it  can  hardly 
be  blamed  for  thinking  that  the  twenty-first,  who 
may  be  a  real  sinner,  ought  likewise  to  be  sent  home 
with  the  others  to  join  his  family.  Respect  for  law 
cannot  be  maintained  unless  each  part  of  the  ma- 
chine of  justice  does  its  full  duty  and  assumes  its 
own  burdens  and  responsibilities. 

It  goes  without  saying  that  no  official  comes  into 
closer  contact  with  the  police  than  the  magistrate. 
He  gets  to  know  them  collectively  and  individually 
as  no  other  person  can.  In  determining  what  should 
be  done  in  any  given  case  he  takes  largely  into  con- 
sideration the  personal  equation  of  the  officer  mak- 
ing the  arrest.  He  is  able  to  detect  exaggerated  or 
manufactured  evidence,  which  might  easily  pass  as 
truth  and  perhaps  convince  a  jury  in  a  higher  court. 
Hence  one  of  the  arguments  for  giving  him  a  wider 
original  jurisdiction.  Petit  juries  are  ordinarily 
disinclined  to  convict  and  send  a  man  to  State's 
prison  in  what  seems  to  them  trivial  cases.  If  the 
magistrate  had  a  wider  scope  in  the  disposal  of  such 
cases  one  of  the  principal  reasons  for  our  lack  of 
respect  for  law  (the  sentimental  and  arbitrary  ac- 
tion of  juries)  would  be  largely  done  away  with. 

The  magistrate,  if  he  be  the  right  kind  of  a  man, 


58  THE  PRISONER  AT  THE  BAR 

can  do  more  real  good,  right  more  real  wrongs,  and 
exert  a  more  wholesome  and  salutary  influence  upon 
the  working  people  of  large  cities  than  any  benevo- 
lent or  charitable  association.  He  can  do  much  to 
break  up  the  alliance  of  the  police  with  crime  and  to 
prevent  arbitrary  acts  of  violence  and  lawlessness 
upon  their  part  committed  either  to  compel  the  pay- 
ment of  blackmail  or  cover  derelictions  of  dwty. 

The  police  judge  also  soon  learns  the  character 
of  the  practitioners  who  appear  so  constantly  be- 
fore him.  Many  a  case  which  on  its  face  seems 
founded  on  justice  may  be  shown  by  a  little  question- 
ing on  the  part  of  the  magistrate  to  be  nothing  but 
an  attempt  to  *^hold  up*'  or  injure  the  defendant. 
The  quasi-criminal  classes  know  well  the  power  of 
the  criminal  law  and  frequently  invite  it  to  secure 
private  vengeance.  When  two  rogues  fall  out  there 
is  often  a  race  to  see  who  can  get  to  the  police  court 
first.  In  other  cases  the  dense  ignorance  of  com- 
plainant or  defendant  renders  justice  almost  impos- 
sible. The  shyster  plays  upon  this  to  his  profit. 
There  is  a  story  told  of  a  practitioner  with  a  large 
Italian  following  who  was  accustomed  to  display 
prominently  upon  a  table  in  his  office  a  small  Testa- 
ment and  a  huge  Webster's  Dictionary.  After  his 
clients  had  stated  their  case  he  would  turn  to  them 
and  ask: 

**Do  you  wish  the  law  from  the  big  book  or  the 
little  book?" 

The  clients  would  inquire  the  relative  cost. 

'^The  law  from  the  little  book  is  ten  dollars — the 
law  from  the  big  book  is  twenty-five  dollars." 

The  clients  would  consult  together  and  on  the 
assumption  that  the  bigger  the  book  the  better  the 


THE   POLICE   COURT  59 

law,  would  almost  invariably  pay  their  twenty-five 
dollars  and  procure  the  best  advice  which  Noah  Web- 
ster could  give. 

The  fact  that  most  police  magistrates  are  ap- 
pointed for  purely  political  reasons  is  much  to  be 
deprecated.  The  days  of  bribery  are  over,  but  occa- 
sionally the  public  has  some  excuse  for  believing 
that  the  desire  to  do  *^a  favor''  for  a  political  friend 
may  have  influenced  the  action  of  one  of  them.  This 
would  have  less  color  were  they  usually  appointed 
for  some  other  and  better  reason  than  mere  party 
fealty.  Ordinarily  the  appointment  goes  to  some 
faithful  worker,  who  has  won  distinction  in  ward 
politics.  Like  enough  he  may  make  an  excellent 
judge.  At  any  rate  he  has  a  direct  personal  knowl- 
edge of  the  people  with  whom  he  is  called  to  deal. 
He  has  equally  first-hand  information  of  local  con- 
ditions and  the  personnel  of  the  police  attached  to 
the  neighboring  precincts.  His  judgment  is  apt  to 
have  a  practical  wisdom  that  a  mere  student  of  law 
could  never  achieve.  He  knows  a  crooked  officer,  a 
crooked  lawyer,  and  a  crooked  complainant  when  he 
sees  one.  Whatever  the  verbal  testimony  happens 
to  be  he  may  very  well  **know  different."  He  is,  as 
the  slang  phrase  accurately  puts  it,  **wise  to  his 
job. ' '  And  when  all  is  said  and  done  the  *  *  influence ' ' 
exerted  upon  him  will  probably  be  only  a  request  to 
*^Do  the  best  you  can  for  So  and  So, — ^he's  a  friend 
of  mine,"  which  will  not  affect  his  action  in  the  least. 
A  college-bred  lawyer  with  no  actual  knowledge  of 
existing  conditions  might  have  the  wool  pulled  over 
his  eyes  at  every  turn,  and,  while  theoretically  en- 
forcing the  law  as  it  is  printed  on  the  statute  books, 
fail  utterly  to  achieve  the  rough-and-ready  justice 


60  THE  PRISONER  AT  THE  BAR 

which  the  situation  demands  and  which  his  less  edu- 
cated brethren  can  dispense  by  virtue  of  instinct  ac- 
quired from  long  experience.  It  must  be  admitted, 
however,  that  the  system  of  political  appointments 
is  just  as  bad,  if  not  worse,  when  applied  to  police 
magistracies  as  when  exercised  in  higher  places. 
The  appointees  may  or  may  not  turn  out  success- 
fully, and  in  New  York  we  have  had  some  extraor- 
dinary surprises  in  both  directions. 

Did  space  permit  a  judicious  selection,  of  the  his- 
toric rulings  of  traditional  magistrates  would  make 
entertaining  reading.  One  of  the  most  famous  was 
that  of  a  certain  learned  member  of  this  bench  who 
is  said  to  have  discharged  a  defendant  accused  of 
killing  a  robin  in  Central  Park  in  the  following 
words ; 

^  ^  You  are  charged  with  breaking  a  park  ordinance 
forbidding  the  public  to  kill  the  robins.  Of  course 
you  ought  not  to  kill  the  robins  for  they  are  harm- 
less birds,  but  I  have  looked  this  thing  up  a  little, 
and  I  find  that  from  time  immemorial  it  has  been 
held  that  there  can  be  no  right  of  property  in  wild 
beasts.  Now,  a  robin  is  clearly  ferrce  naturce — of  a 
wild  nature — and  so  the  city  has  no  property  in  it. 
The  ordinance  is  therefore  unconstitutional,  and  I 
am  constrained  to  discharge  you.    You  may  go." 

Nowhere  than  on  the  magistrate's  bench  is  better 
illustrated  the  proverb  that  a  little  learning  is  a 
dangerous  thing,  but  only  a  little  learning,  even 
such  as  classifies  an  innocent  park  robin  as  a  wild 
beast,  is  preferable  to  an  openly  expressed  inten- 
tion of  enforcing  only  those  laws  which  appeal  to  the 
judge's  individual  sense  of  propriety.  The  writer 
recalls  endeavoring  some  six  years  ago  to  induce 


THE   POLICE   COURT  61 

a  certain  magistrate  to  hold  a  defendant  for  the 
grand  jury  for  a  certain  statutory  offence.  The 
learned  magistrate  positively  refused  to  do  so  on 
the  ground  that  there  was  *'no  sense  in  the  law." 

*^But  it  is  the  law!'^  returned  the  writer. 

**Well,  I  don't  care  if  it  is/'  replied  the  judge 
tartly.  *  *  I  didn  't  make  it.  It 's  no  law  of  mine,  and 
I  don't  propose  to  follow  it.  Go  and  get  the  grand 
jury  to  indict  if  you  can,  but  I  won't  hold  this  man 
for  doing  what  I  might  want  to  do  myself  some 
day."* 

Taken  as  a  body  our  magistrates,  with  a  few 
obvious  exceptions,  are  men  of  wide  experience  and 
practical  common  sense,  who  handle  the  enormous 
stream  of  business  which  comes  before  them  with 
efficiency  and  dispatch.  A  forbidding  exterior  and, 
occasionally,  a  diction  which  might  startle  a  Friday 
evening  prayer  meeting  may  co-exist  with  a  fair 
mind,  a  kind  heart,  and  an  honest  determination  to 
see  that  justice  is  done.  While  the  rights  of  the  de- 
fendant are  fully  protected  it  is  probable  that  actual 
justice  is  more  nearly  accomplished  in  these  than  in 
higher  courts,  where  "reasonable  doubt,"  the  pre- 
sumption of  innocence,  and  kindred  privileges,  as 
interpreted  by  a  sympathetic  jury,  intervene  be- 
tween the  rights  of  the  community  and  those  of  the 
prisoner  at  the  bar. 

*  See  latter  half  of  Subdivision  5,  Section  278  New  York  Penal  Code. 


CHAPTER  V 

THE  TRIAL  OF  MISDEMEANORS 

One  of  the  most  efficient,  effective,  and  important 
criminal  courts  in  the  civilized  world  is  that  estab- 
lished for  the  trial  of  misdemeanors  in  New  York 
County.  Three  judges,  each  having  an  equal  voice, 
act  as  arbiters  of  both  law  and  fact.  Originally  this 
bench  was  filled  by  three  regular  police  magistrates 
sitting  in  rotation,  and  in  many  cases  the  same  judge 
before  whom  the  prisoner  had  been  arraigned  in  the 
first  instance  assisted  in  determining  the  final  ques- 
tion of  his  guilt  or  innocence.  But  the  old  Court  of 
Special  Sessions  acquired  a  very  unsavory  reputa- 
tion for  many  reasons,  the  chief  among  them  being 
its  alleged  susceptibility  to  political  influence  and 
the  looseness  with  which  its  funds  were  handled, 
and  it  was  finally  legislated  out  of  existence  in  1895. 
Then  a  new  court  was  created  composed  of  three 
justices  who,  while  they  had  the  powers  of  police 
magistrates,  did  not  sit  in  magistrates'  courts,  but 
devoted  their  entire  time  to  the  trial  of  misdemean- 
ors. In  the  last  eight  years  this  court  disposed  of 
65,579  cases,  in  which  40,894  persons  were  convicted 
of  crime,  either  by  trial  or  by  plea  of  guilty.  During 
the  year  1907  alone  13,140  cases  were  disposed  of, 
in  which  there  were  7,960  convictions.  The  judges 
in  this  huge  mill  of  justice  rarely  make  mistakes, 
and  few  appeals  are  ever  taken  from  their  decisions. 

62 


THE  TRIAL  OF  MISDEMEANORS         63 

They  have  become,  by  virtue  of  long  experience,  ex- 
perts in  fact,  and  the  training  thus  received  has 
qualified  several  of  them  for  higher  office.* 

As  the  reader  is  already  aware,  a  defendant 
charged  in  a  magistrate  ^s  court  with  the  commission 
of  a  misdemeanor,  say  that  of  petit  larceny,  is  given 
an  immediate  hearing,  and,  if  there  be  reasonable 
ground  to  believe  him  guilty,  is  held  for  trial  in  the 
Special  Sessions.  The  information  or  affidavit,  to 
which  the  complaining  witness  has  sworn  and  which 
contains  a  more  or  less  succinct  account  of  the  facts 
alleged  against  the  prisoner,  is  thereupon  forwarded 
to  the  clerk  of  the  court  and  in  due  course  the  de- 
fendant appears,  if  he  be  on  bail,  or  is  brought  from 
prison,  if  he  be  in  confinement,  to  *^ plead.*'  This 
information,  which  is  the  basis  of  the  proceedings 
against  him  and  which  is  practically  the  only  record 
in  the  case,  is  commonly  called  the  *^ complaint'' 
and  corresponds  with  the  indictment  found  by  the 
grand  jury  where  the  defendant  is  charged  with  the 
commission  of  a  felony. 

After  the  prisoner  has  entered  his  plea,  if  he  be 
in  prison,  he  is  given  a  trial  almost  immediately; 
if  not,  his  case  will  probably  come  up  within  a  week 
or  two.  The  offences  over  which  these  three  judges 
have  jurisdiction  are  as  many  and  as  diversified  as 
human  ingenuity  and  the  demands  of  modern  civi- 

*  Misdemeanors  Disposed  of  During  the  Year  1907. 

Convicted 1,853 

Acquitted 1,045 

Plead  Guilty 6,107 

Discharged 502 

Demurrers  allowed 1 

Forfeited 457 

Actions  dismissed 3,175 

Total 13,140 


64  THE  PEISONER  AT  THE  BAR 

lized  life,  qualified  by  ineffective  legislation,  have 
combined  to  make  them. 

As  might  be  expected,  petty  larcenies  and  assaults 
furnish  together  more  than  thirty  per  cent  of  the 
cases  tried.  The  following  table  will  show  the  more 
numerous  and  important  offences  for  which  defend- 
ants were  held  in  1907  for  the  Special  Sessions  and 
their  relative  proportions : 

Petit  larceny. 2,890 

Assault,  third  degree 2,097 

Maintaining  a  disorderly  house 674 

Carry  concealed  pistol 988 

Cruelty  to  animals 887 

Failure  to  provide  for  minor 235 

Possessing  obscene  prints 124 

Indecent  exposure 84 

Malicious  mischief Ill 

Unlawful  entry 93 

Adultery 11 

Adulterated  milk 252 

Impure  food 80 

Possessing  burglars'  implements 35 

Offence  against  trade-marks  (364  P.  C.) 6 

Violation  Liquor  Tax  Law 2,109 

Violation  Motor  Vehicle  Law 2,709 

Violation  Sanitary  Code 321 

Violation  Labor  Law 176 

Violation  Medical  Law 48 

Violation  Dental  Law 16 

Miscellaneous 1,122 

Total 15,068 


A  spectator  may  in  the  course  of  a  morning  hear 
thirty  or  forty  cases  actually  tried  in  which  the 
charges  cover  almost  every  conceivable  kind  of  sin, 
wrong,  or  prohibition.  One  prisoner  is  being  prose- 
cuted for  assaulting  a  non-union  workman,  another 
for  maintaining  a  public  nuisance,  another  for  a 


THE  TRIAL  OF  MISDEMEANORS         65 

violation  of  the  Liquor  Tax  Law,  another  for  prac- 
tising medicine  without  a  license ;  a  dozen  cases  will 
be  rapidly  disposed  of  wherein  the  defendants  are 
charged  with  shoplifting  or  *  illegal  entry  ^*  (a 
charge  frequently  lodged  against  a  suspected  bur- 
glar who  has  made  an  entry  without  a  ^' break'' 
and  has  been  caught  before  he  has  accomplished  his 
purpose) ;  others  still  will  be  tried  for  carrying 
concealed  weapons,  publishing  or  possessing  inde- 
cent literature,  violating  trade-mark  laws,  breaking 
speed  ordinances,  or  *^  malicious  mischief;  while, 
if  the  student  of  institutions  be  patient,  he  may  be 
rewarded  by  the  exciting  spectacle  of  one  who  is 
defending  himself  against  the  charge  of  selling 
skimmed  milk,  holding  a  mock  auction,  driving  a 
spavined  horse,  writing  a  threatening  letter,  making 
a  fraudulent  assignment,  pawning  borrowed  prop- 
erty, using  a  false  weight,  opening  another's  letter, 
keeping  a  cow  in  an  unhealthy  place,  running  a 
cock-fight,  misrepresenting  the  circulation  of  a 
newspaper,  divulging  the  contents  of  a  telegram, 
impersonating  a  policeman,  adulterating  food;  or, 
provided  he  be  exceptionally  fortunate,  may  hear 
the  trial  of  a  celebrated  actress  for  her  impersona- 
tion of  "  Sappho,"  or  of  a  manager  for  producing 
"  Mrs.  Warren's  Profession." 

He  will  see  every  conceivable  type  of  man,  woman, 
and  child,  either  as  defendant  or  witness,  and  he 
may  also  study  every  variety  of  human  failing  or 
weakness.  No  mock  defence  or  prepared  lie  can  de- 
ceive these  argus-eyed  judges ;  short  shrift  is  made 
of  the  guilty,  while  the  "  reasonable  doubt  "  is  recog- 
nized the  instant  it  puts  in  the  most  furtive  appear- 
ance.   In  fact  defendants  are  often  found  guilty 


66  THE  PEISONER  AT  THE  BAR 

or  acquitted  almost  before  they  are  aware  they  are 
on  trial, — and  this  with  no  detriment  to  them  or  to 
their  cause. 

The  advocates  of  the  abandonment  of  the  jury 
system  point  to  this  court  as  their  strongest  argu- 
ment. No  time  is  lost  in  the  selection  of  a  jury, — 
a  matter  often  of  hours  in  the  General  Sessions  in 
cases  of  no  greater  importance.  There  is  no  opening 
address  on  the  part  of  the  district  attorney  or  coun- 
sel for  the  defendant, — the  written  statement  or 
information  sworn  to  by  the  complainant  being  en- 
tirely sufficient  for  the  court.  Cross-examination 
is  cut  down  to  its  essentials  and  tests  of  **  credibil- 
ity'' are  almost  unnecessary.  At  the  conclusion  of 
the  case  there  are  no  harangues  from  either  side, 
and  the  judges  almost  immediately  announce  their 
decision  and  generally  impose  sentence  on  the 
spot. 

Of  course  in  nine  cases  out  of  ten  the  evidence 
is  conclusive  and  the  merest  glance  at  the  com- 
plainant and  his  or  her  witnesses  is  enough  to  sat- 
isfy the  onlooker  that  their  claim  is  honest  and  the 
charge  substantial.  In  such  cases  the  trials  proceed 
with  lightning-like  celerity.  The  owner  of  the  stolen 
property  is  sworn  while  the  defendant  and  his  law- 
yer are  pushing  their  way  through  the  crowd  to 
the  bar. 

**Mr.  Blickendecker,  are  you  a  grocer,  fifty-five 
years  of  age,  residing  at  1000-A-rear,  First  Avenue, 
and  having  a  store  at  666y2  Catharine  Streets 
rapidly  articulates  the  deputy  assistant  district  at- 
torney. 

*'Ya;  I  vas,*'  answers  Blickendecker  heavily,  try- 
ing helplessly  to  catch  up. 


THE  TRIAL  OF  MISDEMEANORS         67 

**Did  you,  about  4:49  p.m.,  on  Tuesday,  the  17th 
of  April,  observe  the  defendant  near  your  place  of 
business  V^ 

**Ya;  I  vas — ^I  mean,  ya,  I  did/' 

**What  did  you  see  him  doT' 

Blickendeeker  wipes  his  forehead  and  turns  to- 
wards the  court : 

**Your  honors,  gentlemens,  I  see  dot  feller 
dere '' 

**The  defendants  interrupts  the  presiding  judge, 
patiently. 

*  *  Ya — the  defender,  I  see  dot  defender  mit  a  leetle 
vagon  on  two  wheels,  py  mein  store  mit  anoder  fel- 
ler, unt  dey  catch  up  ein  crate  of  eggs  unt  put  him 
in  de  vagon  unt  skip  mit  him,  unt  I  hollers  *Tief  1' 
unt  runs,  unt  de  officer *' 

** That's  enough.  Any  cross-examination?  No? 
Call  the  officer.'' 

The  officer  is  sworn. 

**Are  you  a  member  of  the  Municipal  Police  force 
of  the  city  and  county  of  New  York,  attached  to 

the Precinct,  and  were  you  so  attached  on  the 

17th  of  April  last,  and  did  you  see  the  defendant 
on  that  day  near  the  premises  666y2  Catharine 
Street?" 

**Shure  I  seen  him.  Him  and  another  feller. 
They  were  makin'  off  wid  old  *  Delicatessen's'  eggs. 
I  catched  this  young  feller " 

** That's  enough.  Any  cross-examination?  No? 
Leave  the  stand." 

**The  People  rest,"  announces  the  assistant. 

**Take  the  stand,"  directs  the  lawyer,  and  his 
client  shambles  into  the  chair. 

**Did  you  steal  Mr.  Blickendeeker 's  eggs?" 


68  THE  PRISONER  AT  THE  BAR 

*^No,  your  honor;  Cully  Fagan  asked  me  to  go 
round  and  help  him  deliver  some  eggs.  He  said 
he  'd  gimme  a  drink.  Sol  went  along  wid  him.  All 
of  a  sudden  out  comes  this  old  guy  and  yells  ^  thief. ' 
I  gets  scared  and  runs.    I  didn't  mean  no  harm.'' 

*'That  is  our  case,''  says  the  lawyer. 

*^No  cross-examination,"  says  the  assistant. 

The  judges  consult  for  a  moment. 

*'We  find  the  defendant  guilty,"  announces  the 
presiding  judge,  dipping  his  pen  into  the  ink. 

**Now,  young  man,  have  you  ever  been  con- 
victed!" 

**No,  your  honor." 

*^I  advise  you  not  to  steal  any  more  eggs.  One 
month  in  the  penitentiary.    Next  case ! ' ' 

Now  here  is  a  defendant  given  a  perfectly  fair, 
if  not  a  very  full,  trial  in  less  than  three  minutes. 
Of  course  it  is  in  such  a  case  practically  a  mere 
formality.  Two  witnesses  who  have  had  no  pre- 
vious acquaintance  with  the  prisoner,  whose  eye- 
sight is  perfect,  and  who  have  no  motive  to  swear 
falsely,  identify  him  as  caught  in  flagrante  delicto. 
The  defendant  has  merely  put  in  his  defence  *^on 
the  chance. ' '  His  sentence  would  be  about  the  same 
in  either  case.  The  only  disadvantage  of  so  active 
a  court  is  the  fact  that  the  multitude  of  the  defend- 
ants render  it  almost  impossible  to  make  any  very 
exhaustive  study  of  the  majority  of  them  before 
sentence.  However,  as  the  sentences  are  all  light, 
the  defendant  always  gets  the  benefit  of  the  doubt, 
and  the  court  resolves  all  doubts  in  his  favor. 

Sometimes  in  such  a  case  a  criminal  conspiracy 
between  the  complainant  and  the  officer  is  disclosed 
to  '  ^  do "  a  mischievous,  but  not  criminal,  youth  who 


THE  TRIAL  OF  MISDEMEANORS         69 

has  fallen  into  their  disfavor.  Then  the  witnesses 
are  subjected  to  such  a  fire  of  questions  that  they 
wilt  and  wither  in  the  blast,  the  defendant  is  ac- 
quitted and  the  prosecution's  witnesses  sometimes 
held  for  the  action  of  the  grand  jury  on  a  charge 
of  perjury.  Many  a  cause  celebre  has  originated 
in  the  Special  Sessions  through  the  perspicacity 
of  some  member  of  that  bench  during  a  petty  trial, 
and  defendants  there  convicted  often  divulge  in 
their  confessions  evidence  which  for  a  time  sets  the 
newspaper  world  by  the  ears.  This  is  especially 
true  of  cases  where  some  civil  officer  is  accused  of 
taking  a  bribe  to  influence  his  action  or  to  make  an 
appointment.  He  may  be  convicted,  confess,  and 
for  a  day  or  two  the  papers  are  full  of  the  unearth- 
ing of  a  far-reaching  conspiracy  to  debauch  the  city 
government,  barter  offices  at  wholesale,  and  deliver 
the  city  to  a  coterie  of  criminals.  The  next  step  in 
the  proceeding  is  the  unfortunate  discovery  that  the 
defendant's  confession,  since  it  cannot  be  corrobo- 
rated, is  entirely  worthless.  Yet,  as  he  has  appar- 
ently done  all  he  could  to  atone  for  his  offence,  he 
receives  a  mitigated  sentence,  while  the  uproar  oc- 
casioned by  his  sensational  disclosures  subsides  as 
suddenly  as  it  began. 

The  bane  of  the  Court  of  Special  Sessions  in  New 
York  County  and  very  likely  the  bane  of  all  similar 
courts,  are  the  so-called  ^* Liquor  Tax  cases."  As 
one  of  the  officers  of  this  court  recently  said:  **In 
this  class  of  cases  the  court  knows  that  it  is  being 
*  flim-flammed,'  and,  in  addition,  that  it  is  helpless. 
We  convict  in  about  sixty  per  cent  of  the  cases,  but 
the  judges  know  perfectly  well  that  a  considerable 
number  of  those  convicted  are  men  who,  while  not 


70  THE  PRISONER  AT  THE  BAR 

honest  enough  not  to  violate  the  law,  are  too  honest 
to  pay  corruption  money.'' 

The  possibilities  for  blackmail  and  the  arbitrary 
and  unequal  way  in  which  the  law  is  enforced  in 
different  parts  of  the  city  (one  section  being  allowed 
to  be  **wide  open''  while  an  adjacent  district  is 
**dry")  render  the  judges  loath  to  convict  even 
in  *^ straight"  cases.  When  Liquor  Tax  cases  are 
transferred,  by  order  of  the  judge  presiding  in  Part 
I,  for  trial  in  the  General  Sessions,  the  juries  before 
which  they  are  prosecuted  will  not  convict  at  all.* 

In  the  same  way  the  court  looks  with  grave  sus- 
picion on  most  cases  where  a  defendant  is  arraigned 
charged  with  ** assault"  on  an  officer.  They  expect 
to  see  arraigned  at  the  bar  (and  are  usually  not 
disappointed)  a  small  man  covered  with  bandages, 
while  a  burly  officer  without  a  scratch  upon  his  rosy 
countenance  takes  the  stand  and  swears  that  the 
defendant  assaulted  him.  The  policeman  always 
has  plenty  of  corroboration — the  defendant  none  at 
all.  The  chances  are  that  the  relative  sizes  of  the 
two  men  are  such  that  if  the  officer  coughed  the  de- 
fendant would  drop  dead.  The  proper  charge  in 
such  a  case  would  be,  not  attempted  assault  on  an 
officer,  but  attempted  suicide.  The  truth  of  the 
matter  probably  is  that  the  small  man,  having  done 
or  said  something  to  irritate  the  officer,  has  been 
pounded  to  a  pulp  and  then  ignominiously  haled 
away  to  the  station  house,  while  his  terrified  com- 
panions, knowing  full  well  that  if  they  interfered 
theirs  would  be  a  similar  fate,  have  retired  to  their 
homes  privately  to  execrate  a  state  of  civilization 
where  humble  citizens  can  be  subjected  to  such  per- 
secution. 

*  See  note,  infra,  p.  210. 


THE  TRIAL  OF  MISDEMEANORS         71 

Practically  the  Special  Sessions  is  the  final  court 
of  disposition  for  most  misdemeanors.  Except  in 
automobile,  theatrical,  health,  copyright,  and  trade- 
mark cases  and  a  few  others,  a  majority  of  the  de- 
fendants do  not  have  enough  money  even  to  hire  a 
lawyer,  to  say  nothing  of  taking  an  appeal.  They 
are  disposed  of  then  and  there  just  as  in  certain 
cases  they  are  disposed  of  in  the  magistrates'  courts. 
For  them  a  sentence  once  imposed  is  final. 

Occasionally  the  Special  Sessions  is  the  scene  of 
a  great  trial,  as  celebrated  as  those  fought  out  in 
the  ** Parts''  upstairs  or  in  the  criminal  trial  term 
of  the  Supreme  Court  across  the  hall.  A  prominent 
druggist  may  have  been  accused  of  refilling  bottles 
with  spurious  or  diluted  contents.  He  is  being  pros- 
ecuted by  the  owners  of  the  trade-mark  or  label. 
They  retain  distinguished  counsel  to  prepare  the 
case  for  the  prosecution.  The  accused  engages 
equally  able  lawyers  to  defend  him.  The  crime  is 
highly  technical  and  the  evidence  almost  entirely 
a  matter  of  chemical  analysis  and  expert  opinion. 
The  battle  goes  on  for  weeks  or  even  months.  A 
jury  would  have  become  hopelessly  confused  and 
the  issue  successfully  obscured,  but  the  three  judges 
are  expert  jurymen,  and  in  due  course,  if  he  be 
guilty,  the  defendant  is  inevitably  convicted.  Such 
a  trial  may  cost  the  parties  tens  of  thousands  of 
dollars  for  expert  testimony  alone,  while  the  sen- 
tence of  the  defendant  will  very  likely  be  not  more 
than  a  two-hundred-and-fifty-dollar  fine.  Even  so, 
the  integrity  of  the  trade-mark  has  been  sustained 
and  the  swindler  stamped  as  a  criminal. 

Fifty  per  cent  or  more  of  the  work  of  the  Special 
Sessions  is  practically  amplified  police-court  busi- 


72  THE  PRISONER  AT  THE  BAR 

ness,  but  it  is  accomplished  with  an  exactitude 
and  efficiency  that  makes  much  of  that  done  in  the 
magistrates'  courts  appear  crude  indeed.  The 
lesson  of  this  particular  court  is  that  police  business 
can  be  done  speedily,  effectively,  and  justly,  pro- 
vided the  right  men  are  selected  to  do  it. 

Fully  seventy-five  per  cent  of  the  criminals  begin 
with  petty  infractions  of  the  law.  A  driver  for  an 
iceman  may  ^' swipe''  his  comrade's  horse  blanket. 
If  he  be  convicted  and  sent  to  the  penitentiary  he 
may  learn  to  commit  crimes  of  which  he  had  never 
dreamed  in  his  driver  days,  when  his  highest  ambi- 
tion was  to  get  a  ticket  to  a  *^ chowder"  or  to  a 
*^ grand  ball."  His  next  appearance  may  be  in  the 
General  Sessions  charged  with  burglary,  and  his  last 
in  the  Supreme  Court  under  indictment  for  murder. 
If,  on  the  other  hand,  having  been  found  guilty,  he  be 
merely  reprimanded  and  paroled  under  a  suspended 
sentence,  he  will  in  all  likelihood  never  appear  in 
court  as  a  defendant  again.  Hence  an  opportunity, 
greater  even  than  that  of  the  police  justice,  for  the 
exercise  of  a  wise  and  humane  discretion. 

The  multitude  of  prisoners  who  are  unable  to 
employ  counsel  have  created  a  bevy  of  lawyers, 
abundantly  able  to  look  out  for  the  interests  of  petty 
offenders,  who  stand  or  sit  near  the  bar  and  are 
assigned  by  the  court  to  the  various  defendants.  A 
whispered  fifteen  seconds'  conversation  with  their 
unfortunate  client  and  they  are  enabled  to  take 
charge  of  the  case.  Long  experience  has  made  them 
almost  as  expert  in  estimating  human  nature  as  the 
judges  themselves,  and  they  are  familiar  with  every 
trick  of  the  trade  which  may  raise  a  ^treasonable 
doubt."     The   leaders    among   them   have    skilful 


THE  TRIAL  OF  MISDEMEANORS         73 

*  *  ninners ' '  who  haunt  the  police  courts  and  the  cor- 
ridors of  the  building,  heralding  the  virtues  and 
successes  of  their  masters,  handing  cards  to  pros- 
pective clients,  and  currying  business  in  every  con- 
ceivable manner.  Observing  a  forlorn  person,  who 
timidly  responds  when  his  case  is  called,  the  runner 
instantly  offers  him  the  services  of  the  **biggesf 
lawyer  in  the  court  for  a  five-,  three-,  or  two-dollar 
retainer.  If  the  client  escapes  conviction  he  is  sup- 
posed to  pay  twenty-five  dollars  more  and  is  dunned 
until  he  does.  This  may  seem  petty  business  and 
small  pickings,  but  when  one  considers  that  thirteen 
thousand  odd  cases  are  disposed  of  each  year,  one 
sees  that  at  even  the  modest  fee  of  ten  dollars  per 
case  there  is  over  a  hundred  thousand  dollars  a  year 
in  the  Special  Sessions  waiting  for  somebody. 

The  best  of  these  lawyers  earn  as  much  as  five 
thousand  dollars  per  year,  including  their  outside 
and  police-court  business.  The  runner  usually  gets 
nearly  as  much.  Sometimes  there  will  be  a  one- 
hundred-dollar,  a  two-hundred-and-fifty-dollar,  or 
even  a  five-hundred-dollar  fee.  In  reality  there  is 
more  money  to  be  made  in  the  police  court  than  in 
the  Special  Sessions,  for  it  is  when  the  offender  has 
just  been  caught  and  is  in  his  first  spasm  of  terror 
that  he  is  most  ready  to  **give  up.''  Police-court 
fees  are  sometimes  very  high. 

The  most  notable  figure  of  this  bar  was  Tom 
Cherry,  otherwise  known  as  *  *  The  Attorney-General 
of  the  Special  Sessions."  When  sober  he  was  a 
most  capable,  rough-and-ready,  catch-as-catch-can, 
police-court  lawyer.  His  fame  extended  to  every 
magistrate's  court,  and  his  business  was  so  constant 
that  he  never  sat  down,  but  stood  at  the  bar  from 


74  THE  PRISONER  AT  THE  BAR 

the  opening  of  court  to  its  adjournment,  defending 
almost  every  prisoner  who  had  money  to  pay  a  fee, 
and  being  assigned  to  practically  all  those  who  had 
not.  His  success  was  his  undoing.  Without  any 
knowledge  of  law,  although  he  presumably  had 
passed  the  Bar  examinations  (Heaven  knows  how!), 
his  judgment  of  character,  his  ready  wit,  and  his 
quick  tongue  made  him  no  unworthy  antagonist  for 
a  well-trained  youngster.  But  Cherry  never  took 
an  unfair  advantage,  and  his  statement  as  to  his 
client  ^s  past,  and  sometimes  as  to  his  innocence,  was 
received  without  question  by  the  court.  It  was  a 
boon  to  a  new  assistant  to  gain  Cherry's  confidence; 
and  it  was  a  reproach  to  many  that  they  did  not 
do  so. 

Cherry  finally  succumbed  to  his  closest  friend  and 
worst  enemy — drink.  His  periodic  absences  became 
more  and  more  frequent,  and  finally  the  word  was 
sadly  whispered  through  the  building  that  Cherry 
had  **  passed. ''  His  memory  is  still  green  and  his 
smiling  face  will  never  be  forgotten  by  those  who 
knew  him.  A  rival  attorney  almost  immediately 
succeeded  to  his  practice  and  his  particular  place 
beside  the  bar,  but  the  Court  of  Special  Sessions  is 
not  the  same. 

The  practices  of  the  shysters  are  the  curse  of  the 
lower  courts,  and  their  enormities  are  such  that  a 
special  cycle  in  Hades  should  be  reserved  for  their 
particular  retribution.  Preying  upon  ignorance  and 
vice,  they  become  hardened  to  every  appeal  of 
human  sympathy  and  often  deserve  punishment  a 
thousand  times  more  heavy  than  the  miserable 
wretches  whom  they  make  a  pretence  of  defending. 
They  pervert  justice  and  prostitute  a  sacred  calling. 


THE  TRIAL  OF  MISDEMEANORS         75 

extorting  from  their  clients  the  uttermost  farthing 
by  fear  and  false  pretence.  To  show  that  this 
charge  is  not  ill-founded,  the  reader  may  take  as  an 
example  the  practice  of  the  shyster  in  dealing  with 
those  unfortunate  women  who  are  the  common  prey 
of  the  corrupt  plain-clothes  man  and  his  conscience- 
less ally — the  police-court  lawyer. 

Let  us  suppose  that  a  certain  section  of  the  town 
is,  as  the  saying  goes,  **wide  open,'*  and  the  police 
are  regularly  collecting  protection  money  according 
to  the  approved  method  of  **the  system.''  The 
houses  which  pay  up  are  left  undisturbed — and  all 
do  pay  up.  So  does  the  little  street  walker  who 
plies  her  trade  in  the  open.  Some  citizen  or  news- 
paper makes  a  complaint  that  the  police  are  not 
doing  their  duty.  There  is  a  bare  chance  that  po- 
litical capital  will  be  made  of  it  and  word  is  sent 
to  the  captain  of  the  precinct  to  **get  busy."  He 
sends  for  the  plain-clothes  man,  and  tells  him  *  *  there 
are  not  arrests  enough."  The  officer  answers  that 
** everything  is  quiet."  *^Get  busy,"  says  the  cap- 
tain. A  scapegoat  is  necessary  and  so  the  officer 
goes  out  and,  leaving  the  bawdy-houses  untroubled, 
tracks  some  miserable  creature  to  her  lonely  room 
and  there  arrests  her  under  the  pretence  that  she 
is  violating  the  ** Tenement  House  Law."  Now  the 
worst  that  would  happen  to  such  an  unfortunate 
would  be,  having  ** waived  examination"  before  the 
magistrate,  and  pleaded  guilty  in  Special  Sessions, 
to  be  fined  twenty-five  or  fifty  dollars.  The  girl 
usually  does  not  know  this.  When  she  is  brought 
in  under  arrest  the  keeper  ^*tips  off"  the  runner 
for  some  lawyer,  who  first  frightens  her  into  be- 
lieving that  a  long  term  of  imprisonment  confronts 


76  THE  PRISONER  AT  THE  BAR 

her,  and  then  introduces  his  master.  The  latter  in 
turn  offers  to  get  her  out  on  bail,  meantime  deter- 
mining by  an  expert  cross-examination,  at  which 
he  is  a  past  master,  exactly  how  much  money  she 
has  in  the  world.  He  then  proceeds  to  acquire  this 
by  every  means  at  his  command.  An  actual  case 
will  illustrate  what  follows. 

A  young  girl  who  had  fallen  from  virtue,  but 
who  had  never  been  arrested  before,  was  brought 
into  the  Jefferson  Market  prison.  She  had  saved 
^Ye  hundred  dollars  with  which  she  intended  the 
following  week  to  return  to  her  native  town  in  New 
Hampshire  and  start  life  anew.  The  keeper  led 
her  to  believe  that  she  would  be  imprisoned  in  the 
penitentiary  for  nearly  a  year  unless  she  could 
*'beat  the  case.''  One  of  these  buzzards  learned  of 
her  distress  and  offered  to  procure  bail  for  her  for 
the  sum  of  fifty  dollars.  A  straw  bondsman  was 
produced,  and  she  paid  him  the  money  and  was  lib- 
erated. Meanwhile  the  lawyer  had  learned  of  the 
existence  of  her  five  hundred  dollars.  By  terrify- 
ing her  with  all  sorts  of  stories  as  to  what  would 
possibly  happen  to  her,  he  succeeded  in  inducing 
her  to  pay  him  three  hundred  as  a  retainer  to 
appear  for  her  at  the  hearing  in  the  magistrate's 
court.  He  had  guaranteed  to  get  her  off  then  and 
there,  but  when  her  case  was  called  he  happened  to 
be  engaged  in  reading  a  newspaper  and,  looking 
up  from  where  he  was  sitting,  merely  remarked, 
** Waives  examination,  your  honor."  The  girl  had 
only  one  hundred  and  fifty  dollars  left,  and  as  yet 
had  had  no  defence,  but  the  shyster  now  demanded 
and  received  one  hundred  dollars  more  for  repre- 
senting her  in  the  Special  Sessions.    She  now  had 


THE  TRIAL  OF  MISDEMEANORS         77 

but  fifty  dollars.  Immediately  after  the  hearing  in 
the  police  court  the  bondsman  ^'surrendered''  her 
and  she  was  locked  up  in  the  Tombs  pending  her 
trial,  for  she  had  not  money  enough  to  secure  an- 
other bail  bond.  Here  she  languished  three  or  four 
days.  When  at  last  her  case  appeared  upon  the 
calendar  the  shyster  did  not  even  take  the  trouble 
to  come  to  court  himself,  but  telephoned  to  another 
buzzard  that  she  still  had  fifty  dollars,  telling  him 
to  "  take  her  on."  Abandoned  by  her  counsel,  alone 
and  in  prison,  she  gave  up  the  last  cent  she  had,  hop- 
ing thus  still  to  escape  the  dreadful  fate  predicted 
for  her.  When  she  was  called  to  the  bar  the  second 
lawyer  informed  her  she  had  no  defence  and  the  best 
thing  she  could  do  was  to  plead  guilty.  This  she 
did  and  was  fined  twenty-five  dollars,  but,  having 
now  no  money,  was  compelled  to  serve  out  her  time, 
a  day  for  each  dollar,  in  the  City  Prison,  at  the 
end  of  which  time  she  was  cast  penniless  upon  the 
streets. 

Many  an  originally  honest  young  fellow  who,  in 
a  sincere  attempt  to  build  up  a  small  practice,  has 
haunted  the  magistrate's  court  and  secured  petty 
police  business  has  been  gradually  drawn  into  the 
vortex  of  crime  until  he  is  even  more  tainted  than 
those  whom  he  defends.  The  Legal  Aid  Society, 
which,  so  far  as  the  writer  is  aware,  is  the  only 
bona  fide  charitable  organization  existing  in  New 
York  for  the  purpose  of  assisting  impoverished  per- 
sons to  secure  legal  counsel,  does  not  undertake  any 
criminal  business.  No  greater  service  could  be  ren- 
dered to  the  community  than  by  some  society  or- 
ganized to  protect  helpless  defendants  who  have 
fallen  victims  to  the  vultures  who  prey  upon  the 


78  THE  PRISONER  AT  THE  BAR 

prison  pens.  At  the  present  time  the  official  prose- 
cutor himself  is  the  only  person  to  whom  one  charged 
with  a  criminal  offence  can  turn  with  any  hope  of 
relief  from  his  own  lawyer,  and  if  the  number  of 
cases  were  known  where  the  prosecutor  has  be- 
friended the  prosecuted  the  eyes  of  jurors  and  of 
the  public  would  be  opened  to  the  real  spirit  which 
animates  a  fair-minded  district  attorney. 

A  favorite  trick  of  shysters  if  they  have  an  im- 
prisoned client  who  still  refuses  to  **give  up,''  is  to 
plead  ^^not  guilty  and  not  ready''  and  thus  have 
the  case  adjourned  until  they  squeeze  their  victim 
dry.  A  defendant  who  has  any  money  is  never  per- 
mitted to  go  to  trial  or  even  to  plead  guilty  before 
his  money  is  entirely  exhausted. 

This  is  not  romance,  it  is  practice.  The  men  who 
do  these  things  can  be  seen  any  day  in  every  police 
court  in  New  York — heartless,  cynical,  merciless. 
Lying  and  deceit  are  their  stock  in  trade,  corruption 
their  daily  food.  Within  three  months  one  of  these 
gentry  not  only  compelled  an  eighteen-year-old  girl 
to  give  him  a  fine  Etruscan  ring  which  she  had  in- 
herited, and  which  he  pawned  for  five  dollars,  but 
stripped  her  of  a  new  silk  petticoat  which  he  car- 
ried away  in  a  newspaper  as  a  fee.  This  woman 
served  ten  days  because  she  could  not  pay  her  fine. 
Another  woman  who  had  stolen  an  umbrella  gave 
a  shyster  her  watch.  He  pawned  it  and  then  aban- 
doned her,  when  she  came  up  for  trial.  Each  of 
these  men  has  a  special  line  of  clients  which  he 
serves,  either  because  he  is  supposed  to  be  particu- 
larly expert  in  such  cases  or  because  he  is  regularly 
retained  by  the  ** trust"  which  they  compose.  Thus 
the  East  Side  pickpockets  have  one  attorney,  the 


THE  TRIAL  OF  MISDEMEANOES         79 

''green-goods'*  men  another,  the  opium  sellers  a 
third,  the  abortionists  a  fourth,  while  every  ''short 
changing,''  "thimble  rigging,"  or  "flim-flam"  case 
sees  the  same  lawyer  for  the  defence. 

It  is  a  fact  of  considerable  significance  that  most 
retailers  charged  with  selling  adulterated  milk  are 
defended  by  the  same  lawyers.  The  large  milk  com- 
panies apparently  invite  the  trade  of  the  small 
dealer  by  offering  him  cheap  milk,  and  a  guarantee 
that  if  he  is  caught  selling  their  product  they  will 
not  only  defend  him  but,  if  he  be  found  guilty,  will 
pay  his  fine.  Who  does  the  adulterating?  The 
company  or  the  retailer?  It  is  almost  impossible 
to  say.  Nevertheless,  if  lack  of  evidence  prevents 
proceedings  against  the  companies  themselves,  the 
next  best  thing  is  to  punish  the  dealers  who  act  as 
their  agents,  under  the  guise  of  doing  an  independ- 
ent business.  If  prison  sentences  were  invariably 
inflicted  in  such  cases  the  dealers  would  soon  find 
their  miserable  business  as  unhealthy  as  do  the  con- 
sumers who  buy  from  them. 

Some  very  disreputable,  but,  nevertheless,  highly 
amusing  tricks  are  invoked  by  wily  practitioners  in 
the  Special  Sessions  to  secure  the  release  of  their 
clients.  One  of  the  most  adroit  is  to  secure  adjourn- 
ments from  day  to  day  on  various  pretexts  until 
the  patience  of  the  complaining  witness  is  nearly 
exhausted.  When  the  case  is  at  last  about  to  be 
called  for  trial  the  lawyer  tells  his  runner  to  go  into 
the  corridor  outside  the  court-room  and  send  in 
word  that  some  one  desires  to  see  the  complainant. 
The  complainant  goes  out  to  see  what  is  wanted.  In 
the  meantime  the  case  is  moved  for  trial,  and  when 
his  name  is  called  he  naturally  fails  to  respond.  The 


80  THE  PEISONER  AT  THE  BAR 

shyster,  in  a  most  aggrieved  tone,  then  informs  the 
court  that  the  defendant  *4s  a  hard-working  man 
who  has  already  been  dragged  down  to  court  four 
or  five  times,  ^'  on  each  occasion  being  compelled  to 
lose  an  entire  day 's  pay ;  that  he  is  the  only  support 
of  an  invalid  wife,  an  aged  mother,  six  children,  and 
an  imbecile  brother;  that  the  defence  is  and  always 
has  been  ready  to  proceed  with  the  case ;  that  simply 
in  the  interests  of  justice  he  requests  that  the  de- 
fendant be  discharged  on  his  own  recognizance  or 
acquitted.  In  many  cases  this  motion  is  granted 
and  the  complainant  hurries  back  into  the  court- 
room just  in  time  to  meet  the  defendant  making  a 
triumphal  exit. 

The  tears  and  laughter  of  the  police  courts  are  the 
tears  and  laughter  of  the  Sessions.  The  Miserables 
of  Hugo  are  the  miserables  of  to-day.  Jean  Val- 
jean,  Fantine,  and  Cosette  haunt  the  corridors  of 
our  courts.  As  well  try  to  paint  the  sufferings  and 
experiences  of  mankind  in  a  single  picture  as  the 
ten  thousand  yearly  tragedies  of  the  Special  Ses- 
sions in  a  single  chapter. 


\/ 


CHAPTEE  VI 

THE  GRAND  JURY 

The  constitutions  and  laws  of  most  of  the  States 
of  the  Union  provide  that  no  person  shall  be 
tried  for  a  felony  unless  he  shall  first  have  been 
indicted  for  his  offence  by  a  grand  jury.  The  de- 
fendant may  have  been  caught  in  the  very  act,  have 
freely  acknowledged  his  guilt  to  the  officer  who  ar- 
rested him,  have  admitted  it  before  the  magistrate, 
and  have  signed  a  full  and  complete  confession  of 
his  crime  in  every  detail,  yet  he  cannot  be  placed 
on  trial  or  his  plea  of  guilty  received  until  a  body  of 
twenty-three  intelligent,  but  exceedingly  busy,  gen- 
tlemen, sitting  together  in  a  secluded  chamber,  have 
solemnly  deliberated  upon  the  case.  If  they  agree 
with  the  prisoner  in  his  contention  that  he  is  guilty 
they  thereupon  file  a  diffuse  and  perplexing  docu- 
ment to  that  effect,  which  they  have  not  read,  and 
probably  would  not  understand  if  they  had.  The 
proceeding  has  cost  the  county  some  additional  ex- 
pense and  the  defendant  a  day  or  two  longer  in  jail, 
and  he  has  still  to  be  tried  before  a  petit  jury,  where 
the  evidence  must  be  presented  again  at  the  greatest 
length,  and  where  the  grand  jury's  action  cannot 
be  considered  in  any  way  as  affecting  the  issue.  If, 
on  the  other  hand,  the  prisoner  contends  that  he  is 
innocent,  and  yet  the  magistrate  who  has  heard  the 
case  thinks  otherwise,  the  same  twenty-three  gentle- 
men, hearing,  as  a  general  rule,  only  the  evidence 

81 


82  THE  PRISONER  Al^  THE  BAR 


in  Ms  disfavov,  will  almost  inevitably  return  a  trne 
bill  against  him,  and  he  will  be  put  to  his  trial.  Of 
all  the  features  of  modern  criminal  procedure,  bar 
only  the  office  of  coroner,  the  grand  jury,  or  **The 
Grand  Inquest, '^  as  it  is  called,  is  the  most  archaic. 
While  without  any  doubt  in  thinly  populated  dis- 
tricts it  may  still  be  of  value,  in  crowded  cities 
like  New  York,  where  the  volume  of  criminal  busi- 
ness is  overwhelming,  it  has  in  large  measure  ceased 
to  be  either  effective  or  desirable  so  far  as  the  ordi- 
nary run  of  criminal  cases  is  concerned. 

Some  States  manage  to  dispense  entirely  with  the 
services  of  the  grand  jury.  The  prosecutor  receives 
the  complaint  against  the  accused  directly  from  the 
committing  magistrate,  files  an  information  and 
puts  the  prisoner  on  trial.  Truly  this  would  seem 
both  cheap  and  expeditious. 

Among  the  dusty  archives  of  the  Court  of  General 
Sessions  lie  a  pile  of  parchment-bound  volumes 
which  contain  the  earliest  minutes  of  criminal  pro- 
ceedings in  the  county.  The  first  page  of  the  most 
ancient  of  these  presents  an  account  of  the  empanel- 
ling of  the  first  grand  jury  of  which  any  record  now 
remains  in  New  York.    It  reads  as  follows : 

PROVINCE  OF  NEW  YORK.  Att  the  General  Quarter 
Sessions  of  our  Lord  the  King  held  att  the  Citty  Hall 
in  the  Citty  of  New- York  for  Our  Sayd  Lord  the  King, 
and  the  body  of  the  sayd  Citty  and  County  of  New- 
York,  that  is  to  say  on  Tuesday  the  8th  day  of 
February,  in  the  Six  and  thirtieth  year  of  the  Reigne 
of  our  Sovereigne  Lord  Charles  the  Second  of  England, 
Scottland,  France  and  Ireland,  King,  Defender  of  the 
faith,  &  before  Cornells  Steenyck,  Esq',  May'  of  the  sayd 
Citty,  and  James  Graham,  Recorder,  Nicholas  Bayard, 
John  Inians,  W™  Pinho  .  .  .  Guyl.  Ver  Plank, 
Jn°  Robinson  and  William  Cox,  Esq",  Aldermen  and 


THE    GRAND   JURY  83 

Justices  of  the  Peace  of  the  sayd  Citty  and  County, 
Commisionated  by  Authority  und'  his  Royal  Highness 
James  Duke  of  York  and  Albany  Lord  Prophet'  of 
the  Province  afores^ 

•  •••••• 

The  Grand  Jury  "  which  consisted  of  Nineteen  [?],*  was 
Called  and  Sworne  According  to  An  Oath  Agreed  On  by 
the  Court,  and  was  as  followe*^,  viz". : 

''You  Shall  diligently  Enquire  and  true  Presentm*  make 
of  all  Such  things  and  matt"  as  shall  be  giuen  you  in 
Charge  Or  shall  Come  to  your  knowledge  this  Present 
Servise.  The  Kings,  His  Royal  Highness  Lord  Propriet' 
and  this  City  Councell  Yo'  fallows  and  you'  owne  you 
shall  well  and  Truely  keep  Secreet.  You  shall  present 
nothing  for  Malace  or  Euill  will  that  you  Bare  to  Any 
Person,  Neither  shall  you  Leaue  anything  unpresented 
for  Loue,  favour,  affection  Reward  Or  Any  hopes  thereof, 
but  in  all  things  that  shall  Concerne  this  Present  Servise 
you  Shall  Present  the  truth  the  whole  truth  and  nothing 
but  the  truth,  According  to  yo'  best  skill  and  knowledge 
— Soe  help  you  God. 

M'.  Francis  Rumbout  was  Apoynted  foreman. 

•  •  •  •  •  •  • 

The  Recorder  .  .  .  read  to  them  the'  Charge  wh** 
was  Deliuered  in  Writeing. 

Then  follows  the  quaint  record  of  the  first  pre- 
sentment or  bill  of  indictment : 


John  Robinson, 
W"*  Cox, 
Richard  Elliott, 
Darby  Bryan. 


For  Our  Lord  the   Kings  sworne   to 
^  declare  to  the  grand    jury    w*    they 
know    about    the    Burgulary   Henry 
Thomassen  is  Charged  with. 

The  Bill  Against  him  was  Committed  to  the  Grand 
Jury  w*^  the  Exam"'*'°  of  the  witnesses,  and  the  Court 
adjourned  till  four  in  the  afternoone. 

In  the  Afternoone  the  Court  being  opened  the  In- 
dictm'  ag**  Henry  Thomassen  was  returned  by  the  Grand 
Jury  Billa  vera. 

Henry  Thomassen  being  Called  for   the   Sherriff  re- 
turnes  that  he  has  Broak  Prison  and  made  his  Escape, 
and  Desires  tyme  till  the  next  Sessions  to  Persue  him. 
*  Record  illegible. 


^ 


84  THE  PEISONER  AT  THE  BAR 

Ordered  That  the  Sherriff  doe  make  Persuits  after  the 
prison'  to  haue  him  att  the  next  session  to  abide  his 
Tryall.  The  Grand  Jury  was  dismissed  from  further 
Attendance  till  y*"  next  sessions  and  y^  court  dissolved. 

It  is  interesting  to  observe  that  on  the  13th  day  of 
the  November  following,  in  the  first  year  of  **the 
Reigne  of  onr  Sovereignee  Lord  James  the  Second 
of  England,  Scotland,  France,  and  Ireland,''  etc., 
the  ^^ sherriff*'  having  apparently  made  good  **per- 
snits"  of  Thomassen  and  effected  his  capture,  the 
latter  was  brought  to  the  bar  and  duly  charged : 

"For  that  he  not  haveing  the  feare  of  God  before  his 
eyes,  but  being  Lead  by  the  instigation  of  the  divell 
.  .  .  by  force  and  armes  the  Cellar  belonging  to  and 
being  parte  of  the  dwelling  house  of  William  Cox  of  the 
Citty  of  New-Yorke  merchant  in  the  night  Season,  To 
witt,  between  or  about  the  houres  of  tenn  or  Eleven  of  the 
Clock  .  .  .  feloniously  and  burgularly  did  breake  and 
into  the  same  did  Enter  with  an  intent  to  steale  and  spoile 
the  goods  and  Chatties  of  the  said  William  Cox  contrary 
to  the  peace  of  our  said  sovereigne  Lord  the  King  his 
Crowne  and  dignity.'' 

Having  pleaded  not  guilty  and  put  himself  upon 
the  county  a  jury  was  empanelled  who  swore : 

"That  the  said  Henry  Thomassen  is  guilty  of  the  feleony 
and  burgularly  aforesaid  in  the  said  inditement  above 
specifyed  in  manner  and  forme  as  above  against  him  is 
supposed,  Therefore  it  is  considered  by  the  Court,  that  the 
aforesaid  Henry  Thomassen  be  branded  on  the  forehead 
with  the  Letter  B,  and  be  whipped  on  the  bare  back 
eleven  Stripes  on  the  fourteenth  day  of  November  instant 
in  the  morning  by  Eleven  of  the  Clock,  before  the  City 
Hall  and  pay  all  costs  and  charges  of  prosecution." 

The  oath  of  the  grand  jurors,  their  general  pro- 
cedure, and  the  form  of  indictment  are  practically 
the  same  up  to  the  present  day. 

To  appreciate  fully  just  what  part  the  grand  jury- 
plays  in  the  administration  of  criminal  justice  the 


THE   GRAND   JURY 


85 


reader  should  remember  that  almost  all  defendants 
in  criminal  cases  are  brought  immediately  after 
their  arrest  before  a  police  magistrate  and  given,  if 
they  so  desire,  an  exhaustive  hearing.  If  the  magis- 
trate thinks  there  is  sufficient  cause  to  believe  the 
prisoner  has  committed  the  crime  charged  against 
him  he  is  held  (if  the  crime  be  a  felony  or  a  libel) 
for  the  action  of  the  grand  jury,  or  if  it  be  a  misde- 
meanor, for  whatever  court  tries  such  offences, — in 
New  York  County  the  Court  of  Special  Sessions.  Of 
course  it  is  the  privilege  of  the  defendant  to  be  ad- 
mitted to  bail,  save  where  the  charge  is  one  of  mur- 
der, until  the  proceedings  against  him  result  either 
in  his  final  discharge  or  his  indictment,  and,  as  has 
been  said  before,  once  he  is  held  for  the  grand  jury 
he  cannot,  even  if  he  be  a  self-confessed  criminal, 
be  tried  or  punished  until  that  body  has  deliberated 
upon  his  case. 

The  following  table  shows  the  number  of  arrests 
for  felony  in  New  York  County  each  year  since  1900, 
the  number  of  persons  so  arrested  who  were  "  held  " 
by  magistrates  for  the  action  of  the  grand  jury,  and 
the  number  of  indictments  "  found  "  by  that  body : 


Year 

Number  of 

Arrests  for 

Felony 

Number  of 

Persons  "Held" 

for  Action  of 

Grand  Jury 

Number  of 

Indictments 

Found 

Population  of 

New  York 

County 

1900 

1901 

1902 

1903 

1904 

1905 

1906 

1907 

8,588 

8,435 

9.465 

9,939 

9,238 

11.688 

11,553 

13,913 

4,473 
4,395 
5,020 
4,372 
3,452 
4,751 
4,169 
5,879 

3,674 
4,210 
3,890 
3.898 
3,950 
4,199 
4,116 
5.295 

2,050,600 
2,095,116 
2,139,632 
2,186,017 
2,235,060 
2,468,046 
2,553,100 
2,687,800 

Total 

119,206 

57,241 

52.027 



It  may  be  of  some  interest  to  note  how  this  in- 


86  THE  PRISONER  AT  THE  BAP. 

quisitorial  body  is  brought  into  being.  Every  year 
a  Board  of  Commissioners,  consisting  of  the  Mayor, 
the  Recorder,  the  Presiding  Justice  of  the  Supreme 
Court,  and  others,  meet  and  make  up  a  list  of  a 
thousand  names  from  which  the  grand  jurors  for  the 
year  are  to  be  drawn.  These  names  are  placed  in  a 
wheel  and  each  month  fifty  of  them  are  drawn  out 
at  random  by  the  County  Clerk  in  the  presence  of 
one  of  the  judges  of  the  General  Sessions.  From 
these  fifty  names  the  grand  jury  of  the  succeeding 
month  are  chosen  by  lot.  Of  course  the  selection  of 
jurors  must  perforce  be  made  with  ostensible  impar- 
tiality, for  a  grand  jury  which  was  amenable  to 
political  influence  would  render  the  administration 
of  justice  worse  than  a  farce.  Such  a  condition  has 
not  been  unknown. 

Not  so  very  long  ago  Recorder  Golf  observed  that 
certain  representative  gentlemen  who  had  served 
on  the  grand  jury  for  years  were  no  longer  drawn. 
In  view  of  the  significance  of  the  political  situation 
at  that  time  the  fact  seemed  peculiar  and  he  de- 
termined to  make  a  personal  investigation.  Accord- 
ingly at  the  next  monthly  drawing  the  Recorder 
inserted  his  own  hand  in  the  wheel  and  found  that 
some  of  the  slips  were  heavier  and  of  a  different 
texture  from  the  others,  and  could  easily  be  sepa- 
rated by  the  sense  of  touch.  The  inference  was 
obvious.  Undoubtedly  the  opportunity  thus  to  elect 
between  the  sheep  and  the  goats  had  been  made 
good  use  of.  No  excuse  for  this  astounding  situ- 
ation was  offered,  and  all  the  slips  at  once  were  de- 
stroyed by  order  of  the  court.  Later  on  it  was  ex- 
plained that  the  manufacturer  ^^had  not  been  able 
to  furnish  all  the  slips  of  the  same  material/' 


THE   GRAND   JURY  87 

As  but  twenty-three  grand  jurymen  are  selected 
each  month,  only  two  hundred  and  seventy-six  out 
of  the  total  number  chosen  ever  actually  serve.  The 
judge  appoints  a  foreman,  usually  a  man  of  some 
previous  experience,  and  the  jury  are  sworn.  The 
court  then  delivers  a  charge  and  reads  or  calls  to 
their  attention  certain  sections  from  the  Code  of 
Criminal  Procedure.  If  there  is  any  matter  of  pub- 
lic notoriety  which  comes  within  their  purvue,  such 
as  crimes  against  the  elective  franchise,  or  insur- 
ance, banking,  or  other  frauds,  he  is  likely  to  dwell 
upon  the  necessity  of  paying  particular  attention  to 
this  variety  of  offence.  The  jury  then  retire  to  the 
rooms  prepared  for  them  and  begin  their  secret  de- 
liberations. 

They  are  now  prepared  to  hear  the  evidence 
against  all  persons  charged  with  felonies  or  libel, 
who  have  been  held  for  their  action  by  the  police 
magistrates.  The  original  papers  in  all  these  cases 
have  already  been  copied  under  the  direction  of  the 
district  attorney  and  the  witnesses  subpoenaed  to 
attend  and  give  their  testimony.  These  subpoenas 
are  served  by  attaches  of  the  prosecutor's  office, 
commonly  known  as  *^ county  detectives,''  or,  more 
popularly,  ** sleuths."  It  should  be  observed  that 
the  district  attorney  in  fact  decides  what  cases  shall 
be  submitted,  and  prepares  the  daily  calendar  of  the 
grand  jury,  which  as  a  rule  does  not  know  in  ad- 
vance what  business  it  is  to  consider.  In  addition 
to  this,  the  district  attorney  draws,  usually  in  ad- 
vance, all  the  indictments. 

The  indictment  may  be  said  to  be  the  most  im- 
portant individual  paper  in  criminal  procedure,  for 
upon  its  sufficiency  depends  the  question  of  whether 


S8  THE  PEISONER  AT  THE  BAR 

or  not  a  defendant  may  be  tried,  or  if  tried  and  con- 
victed, sentenced  to  prison.  The  general  form  of 
these  instruments  has  varied  little  during  many  cen- 
turies. They  are  as  archaic  as  the  grand  jury  itself. 
Originally  the  draughter  of  documents  was  paid  by 
the  word,  and  the  more  prolix  he  could  be  the  bet- 
ter it  was  for  him.  This  fact  naturally  influenced 
the  form  of  all  legal  papers.  His  sins  are  still  di- 
rectly visited  upon  us.  Moreover,  not  the  best  forms, 
but  the  worst  are  our  inheritance,  for  usually  only 
the  sufficiency  of  the  worst  is  questioned  and  tested 
by  appeal.  If  an  indictment  is  not  absolutely  de- 
fective, it  is  sustained  by  the  higher  courts,  and  hav- 
ing been  passed  upon  and  not  found  wanting,  imme- 
diately becomes  a  model  for  all  future  draughtsmen. 
It  may  fairly  be  said  that  the  more  faulty  an  indict- 
ment is  (so  long  as  it  be  not  actually  void)  the  bet- 
ter its  chance  of  immortality. 

Probably  the  simplest  indictment  which  the  grand 
jury  can  find  is  one  for  larceny.  Let  us  suppose 
that  a  servant,  Maria  Holohan,  has  stolen  the  teapot 
of  her  master,  the  Hon.  Silas  Appleboy.  The  grand 
jury  present  an  indictment  against  her  in  the  follow- 
ing terms: 

Court  of  General  Sessions  of  the  Peace  in  and  for  the 
County  of  New  York.  The  People  of  the  State  of  New 
York  against  Maria  Holohan. 

The  People  of  the  State  of  New  York,  by  this  indictment, 
accuse  Maria  Holohan  of  the  crime  of  grand  larceny  in 
the  second  degree  committed  as  follows:  The  said  Maria 
Holohan,  late  of  the  Borough  of  Manhattan  of  the  City  of 
New  York,  in  the  County  of  New  York,  aforesaid,  on  the 
1st  day  of  April,  in  the  year  of  our  Lord,  One  thousand, 
nine  hundred  and  seven,  at  the  Borough  and  County  afore- 
said, one  teapot  of  the  value  of  $50,  of  the  goods,  chattels 
and  personal  property  of  one  Silas  Appleboy,  then  and  there 


THE   GRAND   JURY  89 

being  found,  then  and  there  feloniously  did  steal,  take 
and  carry  away,  against  the  form  of  the  statute  in  such 
case  made  and  provided  and  against  the  peace  of  the  People 
of  the  State  of  New  York  and  their  dignity. 

A.  BIRD, 
District  Attorney. 

This  is  merely  saying  that  *  ^  the  grand  jury  charge 
Maria  Holohan  with  stealing  the  silver  teapot  of 
Silas  Appleboy  on  April  1,  1907.''  It  is  the  shortest 
indictment  possible.  A  complicated  indictment  may 
fill  hundreds  of  pages. 

Many  interesting  old  indictments  are  on  file 
among  the  records  of  the  General  Sessions;  and  if 
one  can  judge  by  the  frequency  with  which  the  names 
of  divers  ungodly  and  reckless  Philadelphians  are 
inscribed  upon  their  pages,  *^the  general  reputa- 
tion" of  the  City  of  Brotherly  Love  for  **  peace  and 
quiet''  must  have  considerably  improved  during  the 
past  two  hundred  years. 

As  a  usual  thing  we  find  among  the  papers  filed 
with  the  indictment  the  original  *  information" 
sworn  to  by  the  aggrieved  party.  Give  heed  to  the 
** unmerciful  conduct"  of  Mr.  William  Miller: 

CITY  OF  NEW  ) 
YORK  ss:         j 

Mathew  O'Brien  of  the  City  of  New  York  Mariner  maketh 
Oath  and  Saith  that  on  Sunday  night  the  first  Day  of 
November  instant  he  this  Deponent  being  at  the  Tavern 
kept  by  Francis  King  on  the  Dock  between  the  Hours 
of  Ten  and  Eleven  of  the  Clock  and  having  a  dispute 
with  the  Landlord  relative  to  a  French  Crown  dropped 
by  this  Deponent  one  William  Miller  who  this  Deponent 
heard  and  believes  is  Marker  to  a  Billiard  Table  in  Phila- 
delphia immediately  challenged  this  Dep*.  to  fight  him 
and  stopped  this  Deponent  from  going  out  either  at  the 
Door  or  window  altho.  he  made  frequent  attempts  for  that 
purpose  and  thereupon  knocked  this  Deponent  down,  and 


90  THE  PRISONER  AT  THE  BAR 

beat  kicked  and  wounded  him  in  a  desperate  and  unmerci- 
ful manner.  This  Dep*.  Saith  he  also  lost  out  of  his  pocket 
the  whole  of  his  Money  then  about  him  consisting  of  five 
Guineas  in  Gold  two  Crown  pieces  and  a  Note  of  hand  for 
ten  guineas.     And  further  saith  not. 

Mathew  O'Brien. 
Sworn  the  1  Day  of 
Nov'.  1704  before  me 
Jn°  Broome,  Jus*  Peace. 

The  grand  jury  of  to-day  is  the  same  old  grand 
jury  that  indicted  William  Miller ;  and  the  cases  are 
piling  up, — piling  up,  at  the  rate  of  three,  four,  five, 
or  even  six  hundred  a  month. 

What  would  Mr.  Francis  Rumbout,  who  was 
^'apoynted'^  foreman  of  that  earliest  grand  jury, 
have  said  if  he  had  been  obliged  to  pass  upon  six 
hundred  cases  in  a  month?  The  time  which  could 
actually  be  given  to  the  consideration  of  any  par- 
ticular charge  under  such  circumstances  would  aver- 
age about  six  minutes! 

For  example,  Giuseppe  Candido,  having  been 
summoned  to  appear  suddenly,  finds  himself  stand- 
ing in  the  centre  of  a  large  room  around  which  are 
arranged  a  semi-circle  of  inquisitors. 

He  states  where  he  lives,  what  his  business  is, 
that  he  knows  Michael  Angelo  Spaghetti,  and  that 
the  latter  cut  him  in  the  shoulder  in  a  quarrel  over 
a  glass  of  beer.  He  is  then  excused.  The  grand 
jury  take  a  vote  and  Spaghetti  is  indicted  for  '^wil- 
fully and  feloniously  committing  an  assault  with 
intent  to  kill.''  Generally  only  one  side  of  the  case 
is  heard.  There  is  very  little  attempt  made  to  hold 
the  witnesses  down  to  the  strict  rules  of  evidence. 
It  is  all  ex  parte.  ''U evidence  at  jurie  est  que 
cunque  chose  que  serve  le  partie  a  prover  Vissue 


THE   GRAND   JURY  91 

pur  luy/'  as  Henry  Finch  put  it  at  the  beginning 
of  the  seventeenth  century. 

Once  in  a  great  while,  if  there  is  something  a  lit- 
tle peculiar  in  the  charge  or  in  the  manner  in  which 
the  witnesses  give  their  testimony,  the  jurors  may 
become  suspicious  and  send  out  for  other  witnesses 
or  possibly  for  the  defendant  himself.  Of  course  he 
cannot  be  compelled  to  testify,  but  usually  he  is  glad 
of  a  chance  to  explain  away  the  accusation  if  he  can. 
Perchance  the  inquisitors  refuse  to  indict.  But  what 
a  waste  of  time  for  twenty-three  busy  men !  And  as 
a  rule  what  trivial  matters  are  brought  to  their  at- 
tention ! 

Most  of  the  cases  dismissed  are  so  inherently 
weak  that  the  district  attorney  would  himself  have 
discharged  the  defendants  of  his  own  motion,  but 
the  action  of  the  grand  jury  saves  him  the  trouble 
and  the  odium,  if  any,  and  diffuses  it  among  an  irre- 
sponsible body.  The  same  thing  is  true  of  indict- 
ments found  against  influential  persons, — the  re- 
sponsibility is  with  twenty-three,  not  merely  one. 

But  if  the  grand  jury  is  to  exist  at  all,  it  must  be 
constituted,  and  required  to  act,  in  accordance  with 
the  law.  The  indictment  is  invalid  if  there  be  on  the 
grand  jury  one  who  has  not  the  proper  qualification 
to  sit,  or  if  an  unauthorized  person  be  present,  or 
if  the  evidence  is  not  legally  sufficient.  Even  if  the 
defendant  be  as  guilty  as  the  Father  of  Sin,  he  may 
make  a  motion  to  dismiss  the  indictment  on  any  of 
these  grounds,  and,  whether  the  point  be  well  taken 
or  no,  the  case  may  in  consequence  be  delayed  for 
weeks.  Where  the  defendant  has  the  means  to  em- 
ploy astute  and  learned  coimsel,  he  may  retard  his 
trial  for  weeks,  or  even  months,  by  questioning  the 


92  THE  PEISONER  AT  THE  BAR 

proceedings  of  the  grand  jury  which  found  the  in- 
dictment against  him. 

For  example,  when  Fire  Commissioner  John  J. 
Scannel  was  indicted  for  conspiracy  to  defraud  the 
city  of  New  York,  his  lawyers  ferreted  out  the  fact 
that  one  of  the  grand  jurors  who  had  found  the  in- 
dictment lived  a  large  portion  of  the  year  in  the 
town  of  New  Eochelle.  When  the  defendant  was 
called  upon  to  plead  to  his  indictment  the  lawyers 
offered  ^'a  plea  in  abatement/'  although  the  law 
expressly  provides  that  no  pleas  save  of  ** guilty'' 
or  *^not  guilty"  or  of  ''autrefois  acquit^'  may  now 
be  entered.  They  insisted,  however,  on  their  right 
to  such  a  plea  and  the  matter  was  delayed  for  a 
long  time.  Their  plea  having  been  refused  they 
then  moved  to  dismiss  the  indictment  because  of  the 
alleged  irregularity  in  having  this  juror  present  who 
spent  his  summers  at  the  seashore.  The  determina- 
tion of  this  motion  took  months.  How  like  the  situ- 
ation to  that  which  existed  in  1433,  when  a  statute 
was  enacted  in  order  to  remedy,  if  possible,  some- 
what similar  abuses. 

".  .  .  When  the  Grand  Jury  appears  and  is  ready  to 
pass,  a  tenant  or  defendant  or  one  of  the  petit  jury  pleads 
false  pleas  not  tryable  by  the  Grand  Jury,  and  so  delays 
proceedings  until  this  be  tried.  When  this  is  settled  for 
the  plaintiff,  another  pleads  a  like  false  plea  since  the  last 
continuance;  and  so  each  of  the  defendants,  tenants,  or 
jurors,  one  after  another,  may  plead  and  delay  the  Grand 
Jury;  and  although  all  be  false  and  feigned,  the  Common 
Law  has  no  penalty.  This  has  caused  great  vexation  and 
travail  to  the  grand  juries,  and  plaintiffs  have  been  so  im- 
poverished that  they  could  not  pursue  their  cases,  and  jurors 
are  more  emboldened  to  swear  falsely."  * 

*The  historical  development  of  the  grand  jury  is  highly  interesting. 
Originally  the  assize  at  which  the  knights  assembled  was  not  unlike 
a  sort  of  county  parliament  and  all  manner  of  matters  were  submitted 


THE   GRAND   JURY  93 

A  substantial  proportion  of  the  delays  in  criminal 
procedure  are  due  to  the  interminable  motions  based 
upon  alleged  irregularities  in  the  constitution  and 
action  of  the  grand  jury,  and  the  insufficiency  of 
indictments.  Such  delays  would  vanish  with  the 
abolition  of  that  body. 

But  beyond  its  general  power  to  investigate  spe- 
cific charges  of  crime  laid  before  it,  the  grand  jury 
constitutes  the  only  general  inquisitorial  body  that 
we  have,  and  its  value  and  services  in  this  respect 
must  not  be  overlooked.  It  is  highly  important  that 
the  power  should  reside  in  some  responsible  body 
to  summon  witnesses  and  compel  testimony  anent 
suspected  offences,  conspiracies,  and  official  miscon- 
duct.   This  is  precisely  what  the  grand  jury  did  as 

to  them.  Gradually  as  the  jury  developed  out  of  this  unorderly 
gathering  together,  the  sheriffs  got  into  the  habit  of  summoning  only 
enough  men  to  form  the  grand  jury  and  as  many  petty  juries  (when 
those  came  into  existence)  as  might  be  needed. 

In  the  beginning  private  vengeance  was  the  moving  cause  of  all 
criminal  procedure.  The  aggrieved  party  made  a  direct  appeal  to 
the  county  and  the  issue  was  fought  out,  the  complainant  and  defend- 
ant appearing  in  person  or  by  champions.  This  was  exceedingly 
unsatisfactory  for  many  reasons,  among  others  that  not  seldom  a 
rich  man  would  hire  all  the  champions  within  reaching  distance  and 
the  poor  man  be  left  without  any,  which  suggests  the  somewhat  similar 
practice  of  many  wealthy  litigants  at  the  present  day.  But  this  mode 
of  individual  redress  colored  all  English  procedure  and  is  the  direct 
cause  which  makes  English  criminal  trials  in  so  many  ways  resemble 
private  litigation.     Private  vengeance  was  at  the  bottom  of  it. 

When  the  *' county"  or  the  pubUc  were  the  accusers,  a  mere  ac- 
cusation was  practically  equivalent  to  a  conviction  subject  to  the 
chance  of  the  defendant's  escaping  by  a  favorable  termination  of 
"the  ordeal  of  water."  But  "the  ordeal"  in  time  died  out,  just  as 
did  wager  of  battle,  and  something  had  to  take  its  place.  This  was 
the  jury. 

From  very  early  times  we  find  "grand"  or  "accusing"  juries  pre- 
senting charges  for  the  trial  jury  to  dispose  of,  although  the  accusing 
jury  frequently  acted  as  trial  jury  as  well.  By  1212  it  had  become 
customary  to  submit  a  charge  found  by  a  presenting  jury  to  a  larger 
combination  jury  which  included  the  original  body  which  had  pre- 
sented the  charge.  This  enlarged  jury,  usually  composed  of  a  jury 
from  another  "hundred"  and  "the  four  vills,"  delivered  a  unanimous 
verdict.    By  1300  it  had  begun  to  be  the  privilege  of  an  accused  to 


94  THE  PEISONER  AT  THE  BAR 

far  back  as  1300,  when  it  acted  as  a  ^'suspecting'' 
jury.  Only  through  some  such  power  can  a  rumor 
of  crime,  unsubstantial  and  intangible  in  itself,  be 
traced  to  its  source  and  the  knowledge  of  those  who 
can  testify  as  to  the  perpetration  of  it  secured  at 
first  hand. 

Acting  within  its  legal  powers  as  an  investigat- 
ing body,  the  grand  jury  has  a  vast  power  and  can 
be  immensely  useful  to  the  community,  but  when  it 
attempts  to  do  more,  its  action  has  no  more  validity 
and  is  entitled  to  no  more  respect  than  that  of  any 

"challenge"  those  who  had  presented  the  charge  against  him,  but 
it  was  the  approved  practice  to  try  an  accused  by  some  at  least  of  those 
who  had  presented  him. 

"  The  four  knights  were  called,  who  came  to  the  bar  girt  with 
swords  (above  their  garments)  and  were  charged — to  choose  twelve 
knights  girt  with  swords  for  themselves  and  the  others — and  the 
justices  ordered  the  parties  to  go  with  the  knights  into  a  chamber 
to  choose  or  to  declare  their  challenges  of  the  others  chosen  bj^  the 
four,  for  after  the  return  of  the  panel  so  made  by  the  four  knights 
the  parties  shall  have  no  challenge  to  panel  or  polls  before  the  jus- 
tices."    (1406)  Y.  B.  7  H.  IV,  20,  28. 

The  idea  seemed  to  be  that  unless  there  were  a  few  on  the  jury 
who  had  already  formed  a  provisional  opinion  as  to  his  guilt  the  prose- 
cution would  not  have  a  fair  chance.  In  Willoughby's  case  in  1340, 
Paming,  J.  naively  remarked,  "In  such  case  the  inquest  should  be 
taken  by  the  indictors  (the  accusors)  and  others.  Certainly  if  the 
indictors  be  not  there  it  is  not  well  for  the  King."  In  1351  by  St. 
25  Edw.  Ill,  c.  3,  it  was  enacted  that  "no  indictor  be  put  on  an  in- 
quest upon  the  deliverance  of  one  indicted  for  trespass  or  felony,  if 
he  be  challenged  for  this  cause  by  the  party  indicted."  Persons 
"presented"  or  accused  could  "put  themselves"  upon  dififerent  coun- 
ties, that  is  to  say,  could  submit  their  case  to  juries  drawn  from  such 
counties,  with  certain  limitations,  as  they  might  elect.  Thus  we  find 
a  case  where  one  having  been  "presentea"  by  an  accusing  jury  "puts 
himself  on  the  County  of  Surrey  and  on  all  men  in  England  who 
know  him."  At  Easter  came  riding  twenty-four  knights  from  Surrey 
at  the  king's  summons  who  promptly  found  him  to  be  a  robber, 
and,  says  the  record,  "Since  he  put  himself  upon  these,  let  him  be 
hanged" 

There  is  a  criminal  case  in  Y.  B.  30  &  31  Edw.  I,  528,  which  throws 
a  good  light  on  the  procedure  of  the  time.  W.  was  the  stabler  of  J.'s 
horse  and  had  been  kicked,  while  trying  to  mount,  so  that  he  died. 
The  horse  thereupon  became  forfeit  to  the  king  as  a  deodand.  The 
lury  accused  J.  of  keeping  the  horse  in  spite  of  this  and  also  charged 
him  with  having  buried  W.  without  callmg  in  the  coroner.  This  he 
denied  and  "put  himself  on  the  county."    The  judge,  addressing  the 


THE   GRAND   JURY  95 

other  self -constituted  inquisitorial  body  of  intelli- 
gent citizens. 

A  belief  is  quite  prevalent,  however,  among  grand 
jurymen  that  it  is  their  duty  not  only  to  ascertain 
what  crimes  have  been  committed  and  to  find  indict- 
ments for  them,  but  to  act  as  the  censors  of  the  pub- 
lic morals,  as  watchdogs  of  the  public  treasury,  as 
the  promoters  of  legislation,  and  generally  as  the 
conservators  of  the  public  interests.  This  impres- 
sion is  entirely  erroneous,  and  yet  it  is  surprising 
to  what  an  extent  grand  jurors  imagine  that  because 

jury,  which  was  probably  the  same  that  had  made  the  accusation, 
charged  as  follows: 

"If  W.  died  from  the  kick  of  the  horse,  the  horse  would  be  deo~ 
dand.  If  not  it  would  be  John's.  If  the  king  should  lose  through 
you  what  rightly  belongs  to  him,  you  would  be  perjured.  If 
you  should  take  away  from  John  what  is  his,  you  would  commit 
a  mortal  sin.  Therefore,  by  the  oath  you  have  made,  disclose 
and  tell  us  the  truth,  whether  the  said  W.  died  of  the  horse's 
kick  or  not.  If  you  find  that  he  did,  tell  us  in  whose  hands  is 
the  deodand  horse  and  what  he  is  worth;  and  whether  the  said 
W.  was  buried  without  a  view  of  the  coroner." 
All  things  considered — a  pretty  good  charge. 

Gradually,  and  in  large  measure  because  the  "ordeal"  had  disap- 
peared and  the  grand  jury  as  a  distinct  body  had  been  fully  estab- 
lished, no  method  of  ascertaining  the  truth  of  an  accusation  was  left, 
and  a  mere  presentment  in  fact  amounted  to  a  conviction,  so  that 
the  need  of  some  other  jury  to  pass  upon  the  issue  was  apparent. 
Out  of  this  need  the  modem  petty  jury  developed. 

In  course  of  time  the  accusing  jury  became  as  it  is  now,  a  distinct 
and  separate  body,  deliberating  secretly,  its  members  being  no  longer 
permitted  to  sit  as  trial  jurors.  They  acted  on  common  report,  their 
own  personal  information,  and  upon  the  application  of  injured  parties, 
and  initiated  most  criminal  proceedings.  It  was  necessary  for  some 
one  to  ferret  out  crime  and  hold  the  perpetrators  for  trial,  and  the 
jury  did  practically  the  whole  business.  As  the  years  went  on  the 
jury  became  more  and  more  a  purely  ex  parte  accusing  body  with 
practically  no  judicial  supervision  and  receiving  about  what  it  saw 
fit  as  evidence.  From  time  to  time  the  powers  and  the  character  of 
the  grand  jury  has  been  fiercely  assailed.  Two  centuries  ago  it  came 
near  receiving  a  knock-out  blow,  but  it  had  become  too  firmly  estab- 
lished. In  Shaftsbury's  case,  8  How.  St.  Tr.  759  (1681),  they  were  in 
fact  compelled  to  receive  their  evidence  publicly  in  court,  but  their 
vigorous  protests  and  the  failure  of  the  attempt  left  the  body  all 
the  more  securely  entrenched  in  English  procedure. — Condensation  from 
Prof.  J.  B.  Thayer's  masterly  chapter  on  "  Trial  by  Jury  and  Its  Devel- 
opment" in  his  "Preliminary  Treatise  on  the  Law  of  Evidence." 


96  THE  PEISONER  AT  THE  BAR 

of  their  office  some  particular  sanctity  attaches  to 
their  enunciation  of  opinions  in  matters  that  do  not 
concern  them. 

A  grand  juror  walking  in  the  morning  from  his 
house  to  the  corner  to  take  a  street-car,  accidentally 
stumbles  over  a  coal-hole  cover ;  he  reports  it  to  his 
associates;  many  of  them  know  persons  who  have 
stumbled  over  coal-hole  covers ;  they  talk  the  matter 
over  and  decide  that  there  should  be  no  coal-holes, 
since  with  the  abolition  of  the  coal-hole  the  coal-hole 
cover  also  would  disappear.  They  call  upon  the 
commissioner  of  public  works  to  appear  before 
them  and  testify;  upon  the  street-cleaning  commis- 
sioner; upon  the  commissioner  of  buildings;  they 
learn  how  many  coal-holes  there  are  in  the  city; 
what  their  covers  are  made  of;  how  they  are  fast- 
ened or  are  not  fastened  in  place;  and  some  day 
when  the  grand  jury  comes  down  into  court,  the 
foreman  arises  and  states  that  he  has  a  present- 
ment. The  judge  on  the  bench  requests  him  to  hand 
it  up;  he  delivers  it  to  the  clerk,  who  passes  it  to 
the  judge,  who  returns  it  to  the  clerk  and  directs 
him  to  read  it.  The  clerk  stands ;  the  grand  jurors 
stand;  the  clerk  reads: 

*  ^  To  the  Honorable  John  Smith,  Presiding  Justice 
of  the  Court  of  General  Sessions :  The  Grand  Jury 
of  the  County  of  New  York  respectfully  present: 
Our  attention  has  been  called  to  the  large  number 
of  unprotected  and  unguarded  coal-holes  existing 
in  the  County  of  New  York ;  we  have  called  before 
us  a  large  number  of  witnesses  and  given  much  time 
to  the  taking  of  testimony  relative  thereto ;  we  find 
that  in  the  past  year  ten  thousand  persons  have  lost 
their  lives  through  falling  into  improperly  guarded 


THE   GRAND   JURY  97 

coal-holes,  and  that  the  records  of  the  hospitals 
show  lists  of  over  one  hundred  thousand  others  who 
have  been  severely  injured  by  similar  catastrophies ; 
while  it  is  beyond  the  capacity  of  the  mind  of  man 
to  comprehend  the  infinite  number  of  those  who  have 
been  wounded,  bruised,  lacerated  and  contused  by 
similar  accidents,  to  an  extent  not  sufficient  to  ren- 
der hospital  aid  necessary,  etc.''  And  such  a  pre- 
sentment goes  on  with  its  statistics  and  figures  and 
ends  with  the  recommendation  that  the  legislature 
pass  a  certain  law,  that  the  aldermen  pass  a  certain 
ordinance,  that  certain  laws  or  certain  ordinances 
be  repealed,  or  that  other  legislative  interference 
be  had,  or  legislative  action  should  be  taken,  or  that 
some  city  official  or  city  officials  do  this  or  do  that, 
or  that  some  department  make  such  and  such  an 
investigation  and  act  thereon  in  such  and  such  a 
way,  and  concludes  with  the  signature  of  the  fore- 
man and  secretary  of  the  grand  jury.  The  court 
then  arises,  bows  to  the  grand  jurors,  says:  ** Gen- 
tlemen, we  have  heard  your  presentment;  I  now 
direct  that  it  be  placed  on  file  in  this  court  and  that 
copies  thereof  be  forwarded  forthwith  by  the  clerks 
to  the  heads  of  the  appropriate  departments."  And 
the  grand  jurors  retire,  imagining  that  in  some  way 
they  have  contributed  directly  to  the  public  weal. 

An  examination  of  the  long  list  of  presentments 
on  file  in  the  office  of  the  clerk  of  the  Court  of 
General  Sessions  will  show  the  diversified  interests 
to  which  the  grand  jury,  acting  as  we  have  shown 
as  a  merely  self-constituted  censor  moru7n,  has  de- 
voted its  attention  and  in  which  it  has  consumed 
many  of  its  working  hours  in  the  past.  So  far  as 
we  know,  no  action  whatever  has  ever  been  taken 


98  THE  PEISONEE  AT  THE  BAR 

upon  any  of  these  presentments.  That  at  times  they 
may  have  done  some  good  through  calling  to  the 
attention  of  the  public  press  matters  which  other- 
wise would  not  be  under  scrutiny,  may  be  admitted; 
but  the  discussion  of  them  in  the  press  has  usually 
been  as  ephemeral  as  the  existence  of  the  grand 
jury  by  which  they  were  filed ;  and  in  general  it  may 
be  said  that  the  only  effect  of  a  grand  jury's  med- 
dling with  these  things  is  to  detract  from  the  dig- 
nity of  its  office  and  the  importance  of  the  work 
which  it  and  it  alone  can  lawfully  do. 

The  lay  reader  will  naturally  be  led  to  inquire 
why  this  archaic  institution  which  it  costs  so  much 
time  and  money  to  perpetuate,  which  causes  so  much 
unnecessary  inconvenience  to  witnesses  and  offers 
so  many  technical  opportunities  for  delay,  which 
frequently  is  ineffective  and  officious,  and  for  the 
most  part  concerns  itself  with  the  most  trivial  mat- 
ters only,  should  not  be  abolished,  and  why  pris- 
oners charged  with  crime  whose  cases  have  been 
properly  examined  by  committing  magistrates 
should  not  be  immediately  placed  upon  their  trial. 

It  is  doubtful  if  any  very  convincing  arguments  in 
favor  of  retaining  the  grand  jury  for  the  purpose  of 
indicting  ordinary  offenders  can  be  advanced.  That 
it  should  be  continued  for  the  purposes  of  investiga- 
tion, with  power  of  indictment,  to  be  summoned  when 
the  need  thereof  arises,  is  indisputable.  But  the 
original  necessity  for  the  grand  jury  has  disappeared 
with  the  onward  march  of  the  centuries.*  In  early 
days,  when  the  influence  of  the  crown  threatened  the 
liberties  of  the  English  freeman,  and  when  judges 
and  magistrates  owed  their  positions  to  royal  favor, 

*Cf.  "Reform  in  Criminal  Procedure,"  H.  W.  Chapin,  7  Harvard 
Law  Review  189. 


THE  GEAND  JURY  99 

it  was  often  difficult  if  not  impossible  to  secure  the 
punishment  of  a  criminal  if  he  happened  to  be  a 
retainer  or  under  the  protection  of  those  in  power. 
So,  too,  the  defenceless  subject  might  be  accused 
of  crime  by  an  influential  person  and  haled  to  the 
bar  upon  a  baseless  and  malicious  charge.  Some 
barrier  was  needed  between  the  powerful  and  the 
weak,  and  some  tribunal  before  which  the  weak 
could  accuse  the  powerful  of  their  wrongs.  This 
was  supplied  by  the  grand  jury,  which,  ever  chang- 
ing its  members  and  deliberating  in  secret,  seemed 
well  calculated  to  safeguard  the  people's  liberties. 
But  at  present  we  need  no  such  protection  against 
a  government  of  and  by  the  people,  and  indeed  such 
a  body,  deliberating  secretly  and  hearing  the  evi- 
dence against  an  accused  person  without  giving  him 
the  opportunity  to  be  heard,  seems  strangely  out  of 
harmony  with  the  spirit  of  our  institutions. 

To-day,  the  grand  jury,  initiating  a  proceeding 
against  a  citizen  who  may  be  ignorant  that  he  is 
even  under  suspicion,  may  be  led  to  accuse  him  of 
some  foul  crime  upon  the  mere  ex  parte  statement 
of  malicious  witnesses,  without  giving  him  an  oppor- 
tunity to  explain  or  contradict  the  evidence.  The 
mere  charge  of  crime  is  often  enough  to  ruin  a 
man  forever.  The  argument  that  a  suspected 
person  may  escape  before  arrest  unless  the  charge 
is  considered  secretly,  has  in  these  days  of  tele- 
graphs, railroads  and  extradition  treaties  little  of 
the  force  which  it  may  have  carried  with  it  in 
cruder  times.  Moreover,  the  possibility  of  indict- 
ing public  officials  or  others  upon  insufficient  evi- 
dence for  political  purposes,  or  for  ** moral  effect," 
would  be  done  away  with,  and  only  those  against 


100         THE  PEISONER  AT  THE  BAR 

whom  legal  testimony  made  the  charge  reasonably 
clear  would  be  threatened  with  prosecution,  and 
then  only  when  their  defence  had  been  heard  by  a 
magistrate  and  held  insufficient. 

Prosecutors  now  prefer  to  take  as  few  cases  be- 
fore their  grand  juries  in  the  first  instance  as  possi- 
ble, and  to  send  the  man  with  a  grievance,  who 
thinks  he  has  some  political  pull  and  ^^  wants  to  get 
the  fellow  indicted  anyway,"  into  the  magistrate's 
court  to  make  good  his  charge. 

Almost  twenty-five  per  cent  of  the  States  in  the 
Union  have  modified  their  procedure  in  this  regard 
so  as  to  conform  to  modern  requirements.  The 
State  constitutions  of  Indiana,  Illinois,  Iowa,  Ne- 
braska, Oregon  and  Colorado  give  the  legislatures 
the  power  to  make  laws  dispensing  with  grand  juries 
in  any  case,  and  in  California,  Connecticut,  Kansas, 
Louisiana,  Montana,  South  Dakota,  Utah,  Vermont, 
Wisconsin  and  Wyoming  constitutional  provisions 
exist  permitting  all  criminal  proceedings  to  be  made 
by  information,  or  dispensing  with  grand  juries  in 
certain  cases.  This  is  also  true  of  the  Federal  Gov- 
ernment. Experience  has  demonstrated  that  ample 
protection  is  afforded  the  accused  where  the  State 
is  permitted  to  prosecute  those  held  to  bail  by  an 
examining  magistrate  upon  proof  of  probable  cause. 
He  is  better  protected  than  by  a  grand  jury  which 
hears  in  secret  only  the  evidence  against  him  and 
gives  him  no  opportunity  of  explanation. 

A  system  which  would  allow  of  the  prosecution 
of  all  felonies  by  information  would  do  away  with 
the  great  and  practically  useless  labor  of  our  grand 
jurors  in  the  ordinary  run  of  cases,  would  save 
endless    time    and    money    to    all   concerned,    and 


THE   GRAND   JURY  101 

might  still  retain  the  grand  jury  for  such  purposes 
as  necessity  requires.  Justice  would  be  more 
speedy  and  just  as  effective  if  the  prosecution  of  all 
crimes  were  instituted  before  an  examining  magis- 
trate, and  the  grand  jury  would  then,  at  the  sum- 
mons of  the  court,  meet  to  perform  only  those  im- 
portant and  peculiar  functions  of  investigation  that 
are  consonant  with  its  dignity  and  necessary  to  the 
public  weal. 


CHAPTER  Vn 
THE  LAW'S  DELAYS 

**IF  THE  COOK  SHOULD  STEAL  THE  TEAPOT " 

**I  WOULD  have  her  locked  up  and  punished!''  the 
reader  undoubtedly  exclaims  as  he  notes  our  title. 
It  is  hardly  likely,  however,  that  he  realizes  the  pos- 
sible significance  of  such  an  undertaking.  For  the 
edification,  therefore,  of  those  who  have  cooks  and 
teapots,  and  in  order  to  be  forewarned,  if  not  fore- 
armed, let  us  suppose  that  the  worthy  Mr.  Apple- 
boy  has  not  only  the  domestic  necessary  for  our  case, 
but  also  a  family  heirloom  which  is  worth  more  than 
twenty-five  dollars,  the  requisite  value  to  make  its 
abstraction,  with  felonious  intent,  grand  larceny  in 
the  second  degree. 

Mr.  Appleboy,  after  a  moderately  hard  day's 
work,  has  been  for  an  hour  at  the  club,  and  is  now 
ascending  his  front  steps.  As  he  is  about  to  place 
the  key  in  the  door,  he  observes  his  cook,  Maria, 
making  her  exit  from  the  area  with  some  large  ob- 
ject concealed  beneath  her  shawl.  A  flash  from  the 
dying  sun,  setting  over  the  elevated  railroad  tracks 
of  Sixth  Avenue,  betrays  a  telltale  protruding 
spout.  Maria  does  not  perceive  her  master,  but  the 
latter,  being  of  an  inquiring  disposition,  descends 
the  steps  and  follows  her  down  the  street.  She 
hurries    along   upon   her   journey   until,    reaching 

102 


THE   LAW'S   DELAYS  103 

Eighth  Avenue,  she  turns  the  corner  and  enters  a 
pawnshop.  Mr.  Appleboy,  puffing,  follows  hard,  and 
opens  the  door  just  as  Maria  is  in  the  act  of  receiv- 
ing from  the  pawnbroker  the  sum  of  ten  dollars. 
She  has  the  money  in  one  hand,  the  teapot  in  the 
other;  she  is  caught  in  flagrante  delicto,  or,  in  the 
modern  equivalent,  **with  the  goods  on." 

Maria  shrieks  and  calls  upon  the  saints.  Apple- 
boy,  purple  from  his  exertions,  pounds  the  floor  with 
his  gold-headed  cane  and  fiercely  inquires  what  she 
means  by  going  off  with  his  silver  teapot.  In  reply 
Maria  falls  on  her  knees,  breaks  into  tears,  and  con- 
fesses her  crime,  offering  no  excuse,  and  suggesting 
no  palliating  circumstance.  She  implores  his  for- 
giveness, but  Appleboy,  righteously  indignant,  is  ob- 
durate. She  could  have  stolen  anything  but  his 
grandmother's  teapot,  and  he  would  have  over- 
looked it.  The  pawnbroker,  who  takes  but  a  mild 
interest  in  the  proceedings,  merely  seizes  the  oppor- 
tunity to  remove  from  the  cook's  unresisting  fingers 
the  roll  of  bills. 

Appleboy  resolves  to  do  his  duty.  He  will  set 
an  example  of  good  citizenship — he  will  have  her 
arrested,  locked  up,  and  sent  to  prison. 

** Summon  a  policeman!"  he  cries  to  the  indiffer- 
ent pawnbroker. 

^^Get  one  yourself!"  replies  the  other. 

Appleboy  starts  for  the  door,  keeping  one  eye  on 
the  prostrate  Maria.  Two  blocks  distant  he  sees 
a  stalwart  officer  in  the  act  of  conversing  affably 
with  a  street  cleaner.  At  this  moment  an  urchin 
notices  Maria  couchant  upon  the  floor.  An  expan- 
sive grin  takes  possession  of  his  features,  and,  plac- 
ing his  fingers  to  his  mouth,  he  emits  a  shrill  whistle. 


104         THE  PRISONER  AT  THE  BAS 

Instantly,  like  a  flight  of  vultures,  a  small  army  of 
boys  descend  upon  Appleboy,  who  now  decides  that 
the  only  way  to  procure  the  policeman  is  to  shout 
for  him.  In  his  embarrassment  he  yells:  *'Stop 
thief!  Stop  thief!  Police !''  but  the  officer  pays  no 
attention.  He  is  discussing  Tommy  Sullivan's  chow- 
der party  of  the  night  before. 

**Say,  mister,  I'll  get  the  copper  for  ye,"  shouts 
some  little  fellow,  and  starts  on  a  run  up  the  avenue. 
A  few  follow  him  and  quickly  corral  the  officer,  who, 
protesting,  dawdles  slowly  in  the  direction  of  Mr. 
Appleboy,  swinging  his  club,  and  apparently  tak- 
ing little  interest  in  their  remarks.  Meantime,  the 
pawnbroker  has  shut  and  locked  the  door.  Maria, 
within,  is  still  in  a  state  of  coma.  The  much-annoyed 
old  gentleman  is  fast  being  surrounded  by  a  dense 
throng  of  loafers,  tradesmen,  ladies  of  the  neighbor- 
hood and  pedestrians,  while  the  street  is  blocked 
with  vagrant  cabs  and  grocery  carts.  He  wishes  he 
were  at  home  in  his  comfortable  library,  but  realizes 
that  he  is  in  for  it  now,  and  must  stick  it  out. 

**Well,  what  do  you  want?"  demands  the  officer, 
pushing  his  way  through  the  crowd  until  he 
confronts  the  innocent  cause  of  the  disturbance. 
*>What  are  yer  makin'  all  tibis  row  about,  and 
blockin'  up  the  street  fer?" 

** Maria,  my  cook,  stole  my  silver  teapot,"  an- 
swers Mr.  Appleboy.  **I  caught  her  trying  to  sell 
it  in  there,    I  ask  that  you  place  her  under  arrest." 

** What's  yer  name?"  asks  the  policeman.  *^Who 
are  yer  anyway?"  The  crowd  cheers  delightedly, 
for  while  the  copper  is  not  popular  in  the  neighbor- 
hood, an  old  swell  like  this  is  **nuts"  for  everybody. 

**I  am  a  citizen  and  a  taxpayer,"  replies  Mr. 


THE   LAW^S   DELAYS  105 

Appleboy  stiffly,  *  *  and  I  insist  upon  your  doing  your 
duty  and  arresting  this  woman.'' 

**Aw,  come  on  now  and  give  us  yer  name,"  con- 
tinues the  officer.  **You  can't  expec'  me  t 'arrest 
a  person  unless  I  know  who  I'm  doin'  it  fer.  How 
do  I  know  yer  ain't  thro  win'  some  game  into 
me?" 

At  this  moment  one  of  the  boys  shies  a  banana 
peel  at  Mr.  Appleboy 's  tall  hat.  The  latter,  seeing 
his  disadvantage,  responds : 

**My  name  is  Silas  Appleboy,  and  I  am  a  tax- 
payer and  a  freeholder.  I  demand  that  you  arrest 
this  woman."  The  policeman,  somewhat  impressed 
by  the  other's  vehemence  and  the  statement  that  he 
is  a  freeholder  (the  meaning  of  which  the  official 
naturally  does  not  understand),  inquires  a  little 
more  genially  where  the  lady  is. 

**In  that  shop,"  replies  her  master.  The  crowd, 
with  a  whoop,  rushes  at  the  door,  but  the  pawn- 
broker is  standing  inside  in  an  attitude  of  defence. 
The  policeman,  closely  followed  by  Appleboy, 
pushes  his  way  through  the  mob,  and  raps  loudly. 

'* Stand  back  there,  now,"  shouts  the  officer,  wav- 
ing his  club.  The  small  boys  shrink  back,  leaving 
Appleboy  in  the  centre  of  the  ring.  The  pawn- 
broker opens  the  door.  Maria  is  upon  her  knees, 
calling  vaguely  upon  Heaven  to  defend  her.  The 
silver  teapot  reposes  upon  the  counter.  The  officer 
grasps  Maria  roughly  by  the  shoulder  and  yanks 
her  to  her  feet. 

*'Get  up  there  and  pull  yerself  together!"  he 
exclaims.    ** What's  yer  name?" 

"Me  name  is  Maria  Holohan,"  she  replies  hys- 
terically. 


106         THE  PRISONEB  AT  THE  BAR 

**Do  yer  know  that  manr'  continues  the  officer, 
pointing  at  Appleboy. 

**Shure,  I  know  him/'  is  the  answer.  *^ Haven't 
I  worked  for  him  for  fourteen  years  T' 

^*Did  you  steal  his  teapot  T'  asked  the  officer. 

'  *  Oh,  Holy  Mother !  Holy  Mother ! ' '  wails  Maria. 
**I  took  a  dhrop  too  much,  an'  shure  I  didn't  know 
what  I  was  doin'  at  all,  at  all." 

**Well,  the  first  thing  you'll  do,"  remarks  the 
officer,  **  '11  be  to  walk  to  the  house.  Come  on, 
now!"  And  forthwith  he  drags  Maria  to  the  door, 
and,  holding  her  firmly  by  the  wrist,  marches  her 
upon  the  sidewalk.  Mr.  Appleboy,  the  teapot 
clasped  to  his  bosom,  follows  immediately  behind. 
Their  appearance  is  greeted  with  vociferous  ap- 
proval by  the  waiting  crowd,  who  fall  in  and  escort 
the  group  towards  the  police  station.  But  Maria's 
strength  fails  her,  and,  presently,  with  a  groan  she 
collapses.  Perhaps  the  drop  too  much  has  taken 
effect  in  her  legs.  At  all  events,  despite  the  efforts 
of  the  officer,  she  refuses  to  move,  and  remains  limp. 
The  crowd  has  now  become  so  dense  as  entirely  to 
obstruct  all  traffic  in  the  street,  long  lines  of  electric 
cars  leading  in  each  direction  up  the  avenue,  motor- 
men  and  conductors  forming  a  strong  adjunct  to 
those  giving  gratuitous  advice.  Two  grocery  wag- 
ons get  their  wheels  locked  in  the  throng.  Some  one 
telephones  to  the  station  house.  At  last  the  distant 
clanging  of  the  patrol  is  heard.  The  crowd  scat- 
ters, the  carts  and  cabs  extricate  themselves,  and 
the  ** hurry-up  wagon"  backs  to  the  sidewalk  with 
a  flourish,  two  more  coppers  swinging  on  behind. 
They  bundle  Maria  unceremoniously  inside,  escort 
her  erstwhile  employer  with  hardly  more  courtesy 


THE  LAW'S   DELAYS  107 

into  the  same  vehicle,  and  toss  in  the  teapot:  the 
gong  rings :  and  Mr.  Appleboy  starts  upon  his  task 
of  bringing  an  evil-doer  to  justice,  and  proving  him- 
self worthy  of  the  proud  title  of  citizen. 

The  drive  to  the  station  seems  hours  long,  and  the 
fumes  of  whiskey  are  very  evident  upon  Maria.  The 
officers  are  taciturn.  The  nose  has  been  knocked 
off  the  teapot.  Mr.  Appleboy,  holding  himself  tense 
in  his  seat,  endeavors  not  to  be  jostled  against  the 
lady  who  has,  previously,  cooked  his  meals.  Now 
and  again  she  addresses  him  in  no  complimentary 
terms.  She  has  by  this  time  reached  the  belligerent 
stage,  although  she  has  no  thought  of  denying  her 
guilt. 

The  wagon  draws  up  with  a  jerk  in  front  of  the 
precinct  station  house.  Into  a  second  crowd  of 
gamins  and  loafers,  Appleboy,  still  clutching  the 
noseless  teapot,  emerges.  He  is  followed  by  two 
policemen,  half  carrying,  half  supporting  Maria. 
The  doorman  allows  the  party  to  enter,  while  re- 
pelling the  inquisitive  throng  who  would  like  to  ac- 
company them. 

Once  inside,  Maria  and  her  master,  little  distinc- 
tion being  made  between  them,  are  brought  before 
the  sergeant,  who  reclines  behind  a  desk  upon  an 
elevated  platform.  This  official  interrogates  Mr. 
Appleboy  somewhat  brusquely  as  to  his  name,  ad- 
dress and  the  charge  which  he  makes  against  the 
defendant,  laboriously  copying  the  answers  in  the 
** blotter."  Maria,  petrified  with  terror,  absolutely 
refuses  to  answer  any  questions,  and  mutters  inco- 
herently to  herself.  The  sergeant,  satisfied  of  Mr. 
Appleboy 's  respectability  by  reason  of  his  highly 
polished  hat  and  gold-headed  cane,  commits  the 


108         THE  PEISONER  AT  THE  BAR 

prisoner  to  a  cell  to  await  the  hearing  before  the 
magistrate  on  the  following  morning.  As  the  charge 
is  one  of  felony,  and  as  none  of  her  friends  as  yet 
know  of  her  detention  or  arrest,  the  question  of  her 
release  upon  bail  does  not  arise,  and  after  the  ser- 
geant has  directed  Mr.  Appleboy  to  attend  at  the 
nearest  police  court  the  next  morning  at  half-past 
eight  punctually,  that  gentleman  escapes  down  the 
steps  of  the  precinct  house,  feeling  that  he  has  lived 
through  untold  ages  of  misery.  The  crowd  cheers 
him  as  he  descends,  and  he  hastens  homeward,  the 
joy  of  release  tempered  only  by  the  prospective 
agony  of  the  morrow.  The  noseless  teapot  remains 
in  the  custody  of  the  sergeant  at  the  station  house. 
"We  can  imagine  Appleboy  telling  the  story  to 
his  wife  and  children.  How  heroically  he  figures  in 
his  own  account  of  the  proceedings!  How  pictur- 
esquely penitent  is  Maria !  How  dramatic  her  cap- 
ture in  the  very  act  of  disposing  of  the  stolen  prop- 
erty! How  the  policemen  cower  at  the  majestic 
Appleboy 's  approach!  By  the  time  the  old  fellow 
has  taken  his  coffee  and  lighted  his  perfect©  he  is 
almost  restored  to  his  former  condition  of  pompous 
dignity.  His  intention  to  vindicate  his  position  as 
a  freeholder  and  to  see  that  the  law  shall  take  its 
course  is  revived,  and  he  dreams  of  Maria  hurt- 
ling through  the  abyss  with  dozens  of  silver  teapots 
tied  about  her  ample  neck. 

DELAY  THE  FIKST 

The  next  morning  Appleboy  orders  his  carriage 
and  drives  in  state  to  the  police  court.  His  tall  hat 
secures  him  easy  access  to  a  long  room  with  a 


THE   LAW'S   DELAYS  109 

low  ceiling,  in  which  the  air  is  full  of  strange 
odors. 

Across  the  end  of  the  court,  two-thirds  of  the  way 
towards  the  front,  stretches  an  iron  grating  through 
which  a  gate  admits  police  officers,  local  politicians, 
lawyers  and  the  witnesses  in  any  examination  actu- 
ally in  progress.  He  enters  the  room  exactly  at 
eight-thirty.  Already  it  is  crowded,  and,  having  no 
business  inside  the  gate,  he  is  forced  to  sit  upon  a 
bench  in  company  with  various  friends  of  the  divers 
defendants  who  have  been  committed  during  the 
night. 

It  is  early  as  yet,  and  a  substantial  breakfast  has 
put  Mr.  Appleboy  in  an  optimistic  frame  of  mind. 
Once  the  judge  arrives  how  quickly  the  case  will 
be  disposed  of  and  our  hero  receive  the  thanks  of 
the  magistrate  for  acting  as  he  has  done !  But  alas ! 
Already  a  long  file  of  officers  is  forming  at  the  left 
of  the  desk  behind  the  grating.  Each  officer  has 
located  at  a  safe  distance  one  or  more  ** drunks" 
or  ** disorderlies''  whom  he  has  gathered  in  during 
the  preceding  evening,  and  who  have  spent  the  night 
in  the  station  house.  The  officers  have  recently 
come  off  post  and  now  are  waiting  sleepily  for  the 
arrival  of  the  magistrate  to  dispose  of  **The 
Watch." 

By  a  quarter  to  nine  the  line  has  reached  im- 
mense proportions.  Twenty  officers  stand  in  single 
file  and  the  procession  of  prisoners  reaches  to  the 
doorway  of  the  cells.  In  the  meantime  the  jam  in 
the  room  itself  has  become  greater,  and  the  heat 
and  odors  more  oppressive.  Mr.  Appleboy  wipes 
his  brow  with  his  silk  handkerchief.  He  wishes  he 
had  brought  his  wife's  smelling  salts. 


no         THE  PRISONER  AT  THE  BAR 

Presently  he  discerns  amid  the  crowd  inside  the 
railing  the  now  familiar  features  of  Pat,  the  officer, 
who  beckons  him  to  come  within. 

Our  friend  rises  to  his  feet  to  obey,  but  instantly 
another  officer  bawls:  **Sit  down  there,  you!"  and 
Appleboy  collapses. 

*^Hi,  there.  Rounds,  let  that  old  guy  in,  will  jeV^ 
asks  Pat  good-naturedly. 

The  roundsman  condescendingly  nods  to  the  griz- 
zled guardian  of  the  gate,  who  holds  it  open  just  wide 
enough  to  allow  our  hero  to  squeeze  through. 

^^MorninV'  remarks  Pat,  chewing  vigorously. 

*  ^  Good-morning,  officer,''  replies  Appleboy. 
^* Where  is  the  prisoner!'' 

*  ^  She  came  in  the  wagon  half  an  hour  ago, ' '  says 
Pat.  *^Step  up  while  he  makes  out  the  complaint. 
After  that  we'll  arrange  her." 

So  Pat  and  his  complainant  join  the  mob  which 
is  besieging  the  clerk's  desk,  and  finally  secure 
enough  of  that  functionary's  scattered  attention  to 
induce  him  to  draw  up  a  brief  statement  of  the  facts 
in  the  case.  Pat  disappears  into  the  cells  to  emerge 
in  a  few  minutes,  escorting  the  bewildered  Maria. 
She  is  then  *^ arranged,"  which  in  police  parlance 
is  to  say  she  is  arraigned.  She  has  no  counsel,  and 
evidently  supposes  her  interrogator  to  be  the 
judge,  for  she  insists  on  addressing  him  as  **Yer 
onner."  The  clerk  briefly  warns  her  of  her  rights 
and  puts  the  few  necessary  questions,  which  Maria 
answers  in  a  quavering  voice.  It  is  obvious  that  she 
expects  to  be  at  once  deported  to  Sing  Sing  or  the 
*^  Island." 

**Namer' 

*  ^  Maria  Holohan,  yer  onner. " 


THE   LAW'S   DELAYS  111 

'' Address  r' 

''Two  East  Seventy-first  Strate,  yer  onner,  wid 
this  man  here.''     (Indicating  Appleboy.) 

*' Occupation  r' 

**Shure,  'tis  his  cook,  Oi  am."  ('* Housework'' 
puts  down  the  clerk.) 

**How  long  have  you  lived  at  this  last  address!" 

*' Fourteen  year,  yer  onner,  come  St.  Michael's 
Day." 

**What  have  you  to  say,  if  anything,  relative  to 
the  charge  against  you ?' ' 

(Maria  mutters  incoherently)  *'Shure  Oi  took  the 
taypot,  all  right,  all  right." 

*' Guilty?"  asks  the  clerk. 

*' Guilty,"  whispers  Maria. 

*  *  That 's  all, ' '  says  the  other.  ' '  Stand  back  there 
and  give  some  one  else  a  chance." 

Pat,  holding  the  papers  in  his  hands,  escorts  Maria 
to  the  end  of  the  line,  and  Appleboy  returns  to  his 
seat.  In  his  deposition  he  has  stated  that  his  occu- 
pation is  that  of  ''Bank  President"  and  he  has  in- 
stantly observed  a  change  of  attitude  in  those  about 
him.  '' Rounds"  even  expels  two  unsavory  charac- 
ters for  the  purpose  of  making  room  for  him  in  the 
front  row. 

In  a  moment  more  the  judge  enters  hurriedly, 
takes  his  seat  at  the  desk,  and  begins  rapidly  to  dis- 
pose of  the  file  of  prisoners  before  him.  One  after 
another  the  officers  press  forward,  make  a  brief 
statement  of  the  circumstances  of  the  arrest,  and  the 
prisoner  is  led  away  with  a  fine,  a  lecture,  or  a  sen- 
tence of  a  few  days  in  the  workhouse.  There  is 
no  opportunity  for  other  cases  until  all  the  **  dis- 
orderlies" and  street-walkers  have  been  dealt  with. 


112         THE  PEISONER  AT  THE  BAR 

Half -past  nine  comes,  quarter  of  ten  and  ten  o  'clock, 
the  hour  at  which  Mr.  Appleboy  usually  makes  a 
leisurely  descent  to  his  office,  but  still  there  is  no  res- 
pite. The  monotonous  business  continues.  But 
Mr.  Appleboy 's  time  is  valuable,  and  he  begins  to 
fume  and  fidget.  He  thinks  of  the  dollars  he  is 
losing  by  performing  his  duty  as  a  citizen. 

Pat  has  gradually  neared  the  desk.  At  length 
there  is  but  one  more  case  to  be  heard,  and  the 
*  ^  Rounds '  ^  summons  our  hero  once  more  inside.  Ma- 
ria is  thrust  in  front  of  the  platform  and  stands  with 
her  hands  on  the  rail.  It  has  seemed  an  easy  thing 
to  Mr.  Appleboy  for  a  complainant  to  tell  his  story, 
and  he  has  smiled  scornfully  to  himself  at  the  wan- 
dering and  unconvincing  statements  he  has  heard 
during  the  morning,  but  as  he  is  pushed  upon  the 
platform  under  the  sharp  eye  of  the  magistrate,  his 
courage  begins  to  ooze  out  of  him.  He  wishes  again 
for  the  hundredth  time  he  had  let  Maria  go  off  with 
the  old  teapot.  The  very  thought  of  tea  sickens 
him. 

**Next,"  calls  the  "Rounds,"  as  a  dowdy  young 
woman  is  led  away,  weeping  hysterically. 

Pat  hands  up  the  papers. 

*  ^  Maria  Holohan, ' '  mutters  the  judge,  running  his 
eye  over  the  "information."  "Stole  a  teapot, — 
um — um —    Is  this  the  defendant?" 

"He  indentifies  her,"  answers  Pat. 

The  judge  turns  to  Appleboy. 

"Are  you  the  complainant?"  he  asks  briskly. 

"Y-e-e-s,"  answers  our  hero,  "I  am.  This  is  my 
cook." 

"That  will  do,"  says  the  magistrate.  "Answer 
only  the  questions  that  are  put  to  you.     Do  you 


THE   LAW'S   DELAYS  113 

swear  that  the  statements  contained  in  this  com- 
plaint are  the  truth,  the  whole  truth,  and  nothing  but 
the  truth,  so  help  you,  Godf 

**I  do,''  replies  Appleboy  with  vigor. 

Luckily  for  Appleboy,  no  lawyer  appears  for  the 
delinquent  Maria.  Unfamiliar  with  all  the  vagaries 
and  devices  of  the  criminal  law,  this  lady,  realizing 
that  she  has  been  caught  red-handed,  foolishly  sup- 
poses that  there  is  nothing  for  her  to  do  but  to  cry 
for  forgiveness  and  beg  for  mercy. 

*'Do  you  desire  counsel?"  asks  the  judge. 

Maria  stares  vaguely. 

**Have  ye  got  a  lawyer?"  interprets  the  nearest 
copper. 

^^ Don't  want  no  lawyer!"  snaps  Maria. 

**I  see  you  plead  guilty,"  says  the  judge. 

*^Shure,"  she  answers. 

**Well,"  says  the  magistrate,  **as  she  pleads 
guilty,  I  will  not  detain  you  further.  Your  cook, 
eh?  Well,  well,  it's  too  bad !  Why  will  they  do  such 
things  ?  I  am  glad  you  did  not  lose  the  teapot.  That 
is  all." 

Maria  is  led  away,  while  Mr.  Appleboy  descends 
from  the  platform,  to  be  followed  by  some  other 
righteously  indignant  complainant. 

The  whole  transaction  has  occupied  less  than  a 
minute  and  a  half.  In  order  to  accomplish  it,  Mr. 
Appleboy  has  remained  in  court  from  half-past 
eight  in  the  morning  until  a  quarter  to  twelve. 

** Thank  goodness,"  he  says  to  himself,  '*it  is  all 
over  now.  The  rest  will  be  plain  sailing."  Ah,  how 
little  do  the  Appleboys  know  of  the  administration 
of  criminal  justice!  Pat  accompanies  him  to  his 
<3arriage,  expressing  regret  that  the  matter  could  not 


114         THE  PRISONEE  AT  THE  BAR 

have  been  disposed  of  more  speedily.  Appleboy  is 
not  ungenerous.  He  always  tips  the  colored  porter 
in  the  sleeping-car  most  liberally,  but  although  it 
is  obvious,  possibly,  that  Pat  would  like  a  drink  and 
some  cigars,  Appleboy,  believing  that  by  accommo- 
dating him  he  would  be  committing  a  felony  or,  at 
least,  a  misdemeanor,  coldly  bids  him  good-after- 
noon, and  Patrick,  crestfallen,  returns  to  the  pre- 
cinct house. 

Meanwhile  the  magistrate  fixes  bail  for  Maria  at 
five  hundred  dollars,  and  the  teapot  is  tagged  and  re- 
turned to  the  custody  of  the  sergeant  at  the  station. 
Tired  out,  but  feeling  that  *^a  duty  well  performed  is 
a  rainbow  to  the  heart,"  Mr.  Appleboy  seeks  the 
bosom  of  his  family. 

DELAY   THE   SECOND 

Cookless,  the  Appleboys  struggle  through  the  fol- 
lowing week.  It  is  in  the  height  of  the  season  and 
cooks  are  scarce ;  they  are  also  ill-tempered ;  and  in 
five  days  Mrs.  Appleboy  has  tried  and  dismissed 
three.  The  family,  dinnerless,  nightly  seek  a  neigh- 
boring restaurant,  and  endeavor  to  console  them- 
selves with  the  theatre.  But  after  the  fourth  night 
this  bores  them.  They  begin  to  long  for  Maria's 
omelets  and  Irish  stew.  After  fourteen  years  one 
gets  used  to  a  particular  kind  of  pudding. 

**I  almost  wish,"  said  Appleboy  to  his  wife  when 
they  are  alone,  *  *  that  I  had  not  done  anything  about 
Maria,  but  just  let  her  come  back  and  cook  for  us. 
I  don't  think  she  would  have  tried  to  steal  the  tea- 
pot a  second  time." 

*'But  how  do  you  know,  Silas!"  replies  his  wife. 
**  Think  of  the  orgies  that  may  have  been  going  on  in 
the  kitchen  in  the  last  fourteen  years ! ' ' 


THE   LAW'S   DELAYS  115 

**True,  true/'  answers  Appleboy,  and  again  re- 
news Ms  determination  to  see  the  thing  through  to 
the  bitter  end.  Then  Mr.  Appleboy  receives  at 
his  office  a  green  slip  calling  for  his  attendance 
on  the  morrow  before  the  grand  jury  of  the  County 
of  New  York,  promptly  at  ten  o'clock.  He  has 
never  been  to  the  Criminal  Courts  building  in  his 
life.  He  only  supposes  vaguely  that  it  is  situated 
somewhere  near  the  *^ wholesale  district"  and  not 
far  from  the  Italian  quarter.  He  associates  it 
with  trips  to  Chinatown,  the  East  Side  and  the 
Bowery. 

After  being  thoroughly  shaken  up  by  a  long 
journey  over  the  cobblestones  in  his  carriage,  Mr. 
Appleboy  finds  himself  on  Franklin  Street,  between 
the  Tombs,  on  the  one  hand,  and  the  Criminal 
Courts  building  upon  the  other.  Over  his  head  runs 
* '  The  Bridge  of  Sighs. ' '  A  congregation  of  loafers, 
lawyers,  runners,  policemen  and  reporters  linger 
upon  the  sidewalk.  Unfamiliar  with  the  means  of 
entrance  and  exit,  Appleboy  turns  the  corner  and 
climbs  two  long  flights  of  stone  steps  upon  the  out- 
side of  the  building  instead  of  utilizing  the  side  en- 
trance upon  the  ground  floor  and  taking  the  ele- 
vator. He  enters  an  enormous  hall  around  which, 
on  all  four  sides,  corridors  reach  to  the  top  of  the 
building.  A  motley  collection  of  people  are  hurry- 
ing hither  and  thither.  After  some  difficulty,  Apple- 
boy discovers  a  lift  packed  with  odoriferous  Italians, 
men  with  bandaged  eyes  and  faces,  small,  half-clad 
children,  and  divers  persons  smoking  enormous, 
evil-smelling  cigars,  whom  he  later  discovers  to  be 
members  of  the  legal  profession.  The  car  stops  at 
the  third  floor. 


116         THE  PRISONER  AT  THE  BAR 

*^ District  attorney  and  grand  jury,"  calls  the 
elevator  man.     ^  ^  Grand  jury  to  the  right.  ^  ^ 

Appleboy  gets  off  with  the  rest  of  the  mob,  and 
wanders  down  a  narrow  corridor  past  rows  of  offices, 
until  he  comes  to  a  policeman  standing  by  the  door 
of  a  small  room  crowded  with  people.  There  is 
hardly  space  to  breathe,  much  less  to  sit  down. 
From  time  to  time  a  bell  jingles  in  the  distance,  a 
door  into  another  room  opens,  somebody  comes  out, 
and  an  officer  calls  out  a  name.  Its  owner  hastily 
responds,  is  shot  through  the  door  into  the  other 
room,  and  the  door  closes  again.  This  process  goes 
on  interminably.  In  a  corner,  clerks  separated 
by  a  railing  are  busily  engaged  in  making  out 
subpoenas  and  filling  in  certificates  of  attendance. 
Police  officers  are  everywhere.  Appleboy  takes  his 
stand  by  the  door.  It  is  half-past  ten  o'clock.  He 
has  no  means  of  knowing  when  he  will  be  summoned 
before  the  august  body  who  are  deliberating  in  the 
next  room.  He  has  a  craving  to  smoke,  although 
he  makes  it  a  rule  never  to  do  so  before  six  o'clock 
in  the  afternoon.  He  has  left  his  newspaper  at 
home,  and  has  yielded  up  his  subpoena  to  the  officer 
at  the  door.  There  is  nothing  to  occupy  his  atten- 
tion except  the  sour  visages  of  those  about  him. 
They  belong  to  a  class  of  people  who  instinctively 
fill  him  with  disgust,  being  representatives  of  what 
Appleboy  and  his  wife  are  accustomed  to  term  the 
**  masses.'' 

Person  after  person  is  summoned  into  the  other 
room,  but  no  one  seems  to  want  the  banker.  Pat  is 
there,  to  be  sure,  but  he  is  at  his  usual  pastime,  en- 
joying the  delights  of  mastication.  He  no  longer 
has  any  ^*use"  for  Appleboy.     At  about  a  quarter- 


THE   LAW^S   DELAYS  117 

past  eleven,  the  officer  beside  the  outer  door  calls 
the  name  of  Silas  Appleboy.  Our  hero,  believing 
that  at  last  his  turn  has  arrived,  starts  from  his 
seat,  only  to  be  directed  to  ^^Come  here!'^  by  the 
officer.  He  discovers  that  he  has  been  summoned  to 
confer  with  a  representative  of  the  district  attor- 
ney, who  invites  him  into  a  neighboring  office. 

*  *  Mr.  Appleboy, ' '  says  this  young  gentleman  when 
the  two  are  comfortably  seated,  **I  see  by  the 
papers  in  the  case  that  a  Maria  Holohan  stole  a  tea- 
pot from  you.  Under  what  circumstances  was  the 
theft  committed  r' 

Mr.  Appleboy,  who  supposes  that  the  merits  of 
his  case  have  been  long  since  known  personally  to 
the  district  attorney,  commences  at  the  beginning 
and  rehearses  all  his  woes  and  difficulties.  The  as- 
sistant listens  courteously,  and  then,  without  com- 
ment, bows  Appleboy  out,  who  returns  once  more  to 
the  ante-chamber  of  the  grand  jury.  His  seat  has, 
meanwhile,  been  usurped  by  a  corpulent  lady  in 
deep  mourning,  and  its  former  occupant  is  forced 
to  stand  in  the  corridor  for  an  hour  longer.  Dur- 
ing this  period  he  perchance  has  the  annoyance  of 
hearing  Pat  remark  to  a  fellow  officer  in  no  uncer- 
tain tones  that  **the  old  guy  is  no  good — a  *dead 
one' — I  didn't  even  get  a  smoke  off  him." 

The  ante-chamber  gradually  has  been  thinning 
out.  Finally  Appleboy  gets  a  seat.  The  bell  keeps 
on  ringing  until  only  he  and  a  man  with  a  broken 
nose  are  left.  At  last  a  policeman  hurries  out  of  the 
open  door,  the  bell  rings  again,  and  the  clerk  at 
the  desk  shouts  *  *  Appleboy !  Appleboy ! ' '  Appleboy 
arises. 

'* Eight  in  through  that  door,''  directs  the  clerk, 


118         THE  PRISONER  AT  THE  BAR 

and  Mr.  Appleboy,  shrinking,  enters  timidly  the 
chamber  of  horrors  and  finds  himself  in  the  centre 
of  a  semi-circle  of  gentlemen  of  varying  ages  and 
appearance.  To  Appleboy  a  thousand  eyes  seem 
peering  at  him  from  every  side.  The  silence  is  ap- 
palling. He  stands,  silk  hat  in  hand,  feeling  like  a 
very  small  boy  who  has  been  called  before  the  head 
master  to  be  punished  for  some  offence.  A  man  in 
the  middle  of  the  semi-circle  and  directly  in  front 
of  him,  is  scratching  busily  with  his  pen.  The  grand 
jurors  whisper  among  themselves.  Presently  the 
foreman  looks  up,  observes  Appleboy  standing,  and 
remarks:  ''Sit  down,  sir.''  Mr.  Appleboy  sinks 
into  a  chair  beside  the  stenographer.  The  foreman 
glances  at  the  indictment  already  prepared,  and 
then  says  sharply:  ''Stand  up,  sir, — and  be 
sworn ! ' ' 

A  Bible  is  forced  into  his  unenthusiastic  hand. 

"You  do  solemnly  swear  the  evidence  you  shall 
give  to  the  Grand  Inquest  upon  the  complaint 
against  Maria  Holohan  shall  be  the  truth,  the  whole 
truth,  and  nothing  but  the  truth:  So  help  you, 
God!'' 

Mr.  Appleboy  replies  faintly:  "I  do,"  and  makes' 
an  ineffectual  attempt  to  kiss  the  Bible. 

**Sit  down!"  directs  his  interlocutor.  "Ahem! 
You  had  a  teapot  worth  over  fifty  dollars,  and  your 
€ook  stole  it?    Did  you  see  her?" 

"Yes,"  answers  Appleboy,  and  in  a  few  words 
describes  the  occurrence.  The  foreman  sweeps  the 
grand  jury  with  his  eye. 

"Any  questions?"  he  asks.  There  is  no  response 
from  the  others. 

"That  is  all,  sir,"  says  the  foreman.    "I  see  that 


THE   LAW'S   DELAYS  119 

the  woman  pleaded  guilty  in  the  police  court.    Good- 
morning.  ' ' 

Appleboy  takes  his  hat  and  retires.  Two  hours' 
wait  for  an  examination  occupying  thirty  seconds! 
He  has  heard  of  the  *^ law's  delays,"  now  he  knows 
what  they  are.  The  bell  rings  again  as  he  is  making 
his  way  out  into  the  corridor,  and  the  man  with  the 
broken  nose  stumbles  in  through  the  door  by  which 
our  friend  has  made  his  exit. 

DELAY   THE   THIBD 

Mr.  Appleboy  now  believes  that  his  troubles  are 
over,  for  he  has  consulted  his  family  lawyer  in  or- 
der to  make  sure  that  everything  is  all  right,  and 
has  learned  that  since  Maria  has  pleaded  guilty  in 
the  police  court,  she  will,  after  her  indictment,  un- 
doubtedly do  likewise  in  the  General  Sessions. 

Two  days  later  Appleboy  receives  a  subpoena  to 
attend  in  ^*Part  I  of  the  Court  of  General  Sessions 
of  the  Peace"  as  complainant  in  the  case  of  **The 
People  of  the  State  of  New  York  against  Maria 
Holohan. ' '  Down  he  goes  and  sits  for  a  full  hour  in 
an  ice-cold  court-room  which  is  thronged  with  police- 
men, irate  complainants,  and  sympathizing  friends 
of  the  defendants,  until,  among  the  line  of  bedrag- 
gled prisoners,  who  are  brought  in  batches  of  from 
four  to  six  from  the  Tombs  through  a  little  door  in 
the  back  of  the  room,  he  recognizes  the  erstwhile 
queen  of  his  kitchen — Maria,  the  unapproachable. 
She  looks  much  the  worse  for  wear.  The  feathers 
of  her  hat  hang  disconsolate.  In  addition  she  is 
minus  her  collar  and  goes  clumping  around  the 
room  after  the  policeman  as  if  she  had  never  broiled 
a  lobster  or  tossed  a  flapjack.    As  she  turns  the  cor- 


120         THE  PEISONER  AT  THE  BAR 

ner  by  the  jury  box  she  spies  her  lawyer,  and  im- 
mediately brightens.  They  hold  an  animated  con- 
versation in  whispers  as  he  takes  his  place  beside 
her  at  the  bar. 

**  Maria  Holohan,''  says  the  clerk  severely,  **yon 
have  been  indicted  by  the  grand  jury  for  grand  lar- 
ceny in  the  first  degree.  Do  you  plead  guilty  or  not 
guilty  r' 

Appleboy  starts  from  his  seat  almost  ready  to  call 
out  in  explanation:  **She  pleads  guilty,  your  hon- 
or, ' '  but  before  he  has  an  opportunity  to  do  so,  or  to 
suffer  any  of  the  uncomfortable  consequences  of 
such  an  act,  the  weazened-faced  little  attorney  rep- 
resenting Maria  responds  sharply:  **Not  guilty. *' 

Appleboy  is  stunned.  Why,  the  woman  has  al- 
ready confessed  her  guilt,  after  having  been  caught 
in  the  act !  What  absurdity !  What  nonsense !  But 
the  plea  is  taken ;  the  lawyer  asks  that  a  date  be  set 
for  trial  not  nearer  than  a  week  on  the  ground  that 
he  may  conclude  upon  investigation  to  advise  his 
client  to  change  her  plea,  and  because  he  has  a  wit- 
ness living  outside  the  State;  and  the  court  grants 
this  application. 

Not  guilty!  As  Maria  tramps  out  in  company 
with  other  defendants,  Appleboy  makes  up  his  mind 
that  he  will  see  what  all  this  means,  and  steps  for- 
ward through  the  gate  to  speak  in  person  to  the 
representative  of  the  district  attorney.  A  hand  is 
laid  upon  his  shoulder,  and  he  is  hauled  back  uncere- 
moniously. 

**Here!    Where  are  you  going?" 

**I  want  to  speak  to  the  district  attorney,"  he 
replies  meekly. 

'*Sit  down,"  replies  the  officer.    *^He  can't  speak 


THE   LAW'S   DELAYS  121 

to  you  now.    Look  him  up  in  his  office  after  court 
adjourns. '  * 

Mr.  Appleboy,  chastened  by  experience,  makes  no 
protest  and  retires  from  the  room.  He  has  lost  too 
much  money  already  by  absence  from  his  office  to 
make  it  worth  his  while  to  wait  until  the  adjourn- 
ment of  the  court,  so  he  goes  down  town  to  attend 
to  his  business,  and  at  the  first  opportunity  calls  up 
his  attorney  to  inquire  what  it  all  means.  The  law- 
yer responds  briefly  that  the  mere  fact  that  the  de- 
fendant has  pleaded  guilty  in  the  police  court  does 
not  preclude  her  from  changing  her  mind  and  deny- 
ing her  guilt  later  when  called  upon  to  plead  to  an 
indictment.  He  regrets  the  inconvenience  to  which 
his  client  has  been  put,  and  suggests  by  implication 
that  it  would  have  been  well  if  Mr.  Appleboy  had 
consulted  him  before  taking  any  action  in  the  mat- 
ter. Appleboy  has  already  come  to  this  conclusion 
himself. 

DELAY  THE  FOUETH 

A  week  later  Appleboy  receives  another  subpoena 
which  commands  him  under  penalty  to  call  at  the 
district  attorney's  office  at  half  after  ten  o'clock 
and  **Ask  to  see"  Mr.  John  Smith,  whom  he  finds, 
after  some  difficulty,  in  a  little  office  in  the  same 
building  and  corridor  through  which  he  passed  when 
he  appeared  before  the  grand  jury. 

**Is  this  Mr.  Smith?"  he  inquires. 

*'Yes,"  answers  the  young  man.  '^What  do  you 
wantr' 

**I  have  a  subpoena,"  replies  the  other,  *Ho  see 
you  this  morning." 

^*0h,  yes,  I  remember,"   remarks  the  assistant. 


122         THE  PEISONER  AT  THE  BAR 

^'You're  in  the  Holohan  case,  aren't  you?  Woman 
stole  your  teapot,  didn't  she?" 

^^Yes,"  mutters  Mr.  Appleboy,  **she  did,  some 
time  ago.    What  can  I  do  for  you?" 

^^Well,  I  want  you  to  tell  me  about  the  case," 
mildly  explains  the  assistant.  ** Who's  Maria  Holo- 
han,  anyway?" 

So  Appleboy  begins  at  the  beginning  and  tells  the 
whole  story  through,  while,  from  time  to  time,  the 
assistant  laughs  softly  to  himself.  When  the  history 
is  concluded,  the  young  man  leans  back  in  his  chair, 
blows  a  ring  of  smoke  towards  the  ceiling  and  ex- 
claims; ** That's  always  the  way!  Some  miserable 
little  shyster  gets  hold  of  'em  in  the  Tombs  and 
swears  that  he  can  get  'em  off,  no  matter  how  plain 
the  facts  are,  or  even  if  they  have  pleaded  guilty  in 
the  police  court.  Well,  I  '11  make  a  note  of  the  case, 
and  when  it  comes  up  for  trial  you'll  get  a  subpoena. 
Sorry  to  have  had  to  bother  you.    Good-morning ! ' ' 

DELAY   THE   FIFTH 

Appleboy  departs.  Three  days  later  he  gets  an- 
other subpoena  to  appear  before  the  Court  of  Gen- 
eral Sessions.  When  the  case  is  called,  however, 
Maria's  lawyer  gets  up  and  moves  for  an  inspection 
of  the  grand  jury  minutes  upon  the  ground  that 
there  was  not  sufficient  evidence  before  that  body  to 
warrant  the  finding  of  an  indictment.  The  judge 
denies  this  motion  peremptorily,  since  there  has 
already  been  a  hearing  in  the  police  court.  Upon 
this  the  attorney  states  that  he  is  actually  engaged 
in  a  trial  of  another  action  elsewhere.  The  case 
therefore  **goes  over,"  of  necessity.  Nearly  three 
weeks  have  now  elapsed  since  the  theft.    Presently 


THE   LAW'S   DELAYS  123 

Appleboy  gets  another  subpoena.  He  trots  down  to 
court  half  an  hour  before  the  opening.  The  case  is 
marked  *^Eeady.''  He  is  told  to  remain  in  court, 
but  some  other  case  is  already  on  trial,  having 
lasted  over  from  the  day  before,  and  at  noon  it  is 
still  in  full  swing.  The  court  adjourns  for  an  hour, 
from  one  to  two.  Appleboy  returns  obediently  at 
that  time,  but  the  case  which  was  on  trial  in  the 
morning  continues  throughout  the  entire  afternoon. 
He  departs  at  four  o'clock,  furious. 

Next  morning  he  is  dragged  down  again.  This 
time,  however,  the  case  against  Holohan  is  ad- 
journed without  date,  owing  to  the  fact  that  Maria's 
counsel  has  applied  to  the  court  for  a  commission 
to  take  testimony  in  Boston.  They  intimate  that 
they  may  interpose  the  defence  of  insanity,  or  at 
least  dipsomania,  and  evince  an  unaccountable  eager- 
ness to  examine  Maria's  great  aunt,  who  is  act- 
ing as  general  housework  girl  for  a  minister's  fam- 
ily in  Roxbury,  Mass.  The  district  attorney  stren- 
uously opposes  this  motion.  The  judge,  however, 
'Hakes  the  papers,"  as  he  is  obliged  to  assume  that 
the  request  is  made  in  good  faith, 

DELAY   THE    SIXTH 

Appleboy  hears  nothing  of  the  case  for  another 
week.  At  the  end  of  that  time  he  gets  a  subpoena 
of  a  different  color,  and  again  journeys  down  to 
court.  But  this  time  he  first  seeks  out  Smith  in  his 
office  and  asks  if  there  is  any  likelihood  of  the  case 
being  tried  that  day.  Mr.  Smith,  whose  room  is 
thronged  with  witnesses,  tells  Mr.  Appleboy  that  he 
is  no  longer  assigned  to  that  part  of  the  General 
Sessions  on  whose  calendar  the  case  appears,  and 


124         THE  PRISONER  AT  THE  BAR 

that  another  assistant,  Mr.  Jones,  will  have  to  try 
the  case.  He  therefore  conducts  Mr.  Appleboy  to 
an  adjoining  office  and  presents  him  to  Jones. 

The  latter  receives  Appleboy  courteously  and  as- 
sures him  that  he  will  try  the  Holohan  case  the  very 
first  of  all.  They  talk  the  matter  over  and  unite  in 
their  objurgations  against  defendants'  lawyers  in 
general.  Jones,  however,  is  confident  that  this  time 
they  will  succeed  in  disposing  of  the  matter.  They 
adjourn  together  to  the  court-room.  But  on  the  call 
of  the  calendar  Maria's  lawyer  claims  that  one  of 
his  most  material  witnesses  is  absent,  and  that  with- 
out him  his  client's  interests  would  be  jeopardized. 
The  judge,  who  by  this  time  has  correctly  gauged 
the  situation,  nevertheless  directs  him  to  go  on  with 
the  case.  The  lawyer  then  states  that  he  has 
had  a  bad  night  and  feels  very  unwell.  The  judge 
continues  unsympathetic.  The  assistant  is  openly 
skeptical.  The  attorney  thereupon  is  suddenly 
taken  with  great  pain  and  retires  for  air  to  the  cor- 
ridor outside  the  court-room.  Nothing  can  be  done. 
Perhaps  the  lawyer  really  has  a  pain. 

The  assistant  shrugs  his  shoulders  and  announces 
that  he  will  move  the  case  of  Michael  Angelo  Spa- 
ghetti, indicted  for  assault;  the  defendant  is  or- 
dered to  the  bar,  and  the  court  directs  the  clerk  to 
announce  that  **no  other  case  will  be  tried''  that 
day. 

Appleboy  drags  himself  with  the  rest  of  the 
throng  through  the  door  into  the  corridor.  This  is 
the  third  time  he  has  practically  given  up  an  entire 
morning  to  appearing  as  complainant  in  a  case 
which  seems  fated  never  to  be  tried.  He  goes  down- 
stairs swearing  vengeance  against  Maria  and  her 


THE   LAW'S   DELAYS  125 

lawyer.  This  performance  is  repeated  possibly 
some  four  or  five  times  more  with  variations.  But 
he  never  gets  nearer  than  having  the  case  marked 
^' ready/'  and  something  always  intervenes,  Maria's 
lawyer  exhibiting  an  almost  supernatural  cleverness 
in  the  invention  of  excuses. 

On  all  these  occasions,  while  awaiting  the  call  of 
the  calendar,  Appleboy  is  likely  to  sit  in  close  prox- 
imity to  the  defendant,  who  has  been  released  on 
bail  pending  her  trial,  and  who  casts  withering 
glances  in  his  direction.  Her  brother  Terence  also 
seizes  the  opportunity  presented  by  the  various  ad- 
journments to  tell  Appleboy  what  he  thinks  of  him 
and  what  he  intends  to  do  to  him  after  the  case  has 
been  disposed  of. 

The  district  attorney  has  done  everything  in  his 
power  to  force  the  defence  to  trial,  but  his  every  at- 
tempt has  been  unavailing.  Nevertheless,  Apple- 
boy blames  him  personally  for  every  idiosyncrasy 
of  the  law  and  for  every  delay  procured  by  the 
defence. 

DELAY  THE   SEVENTH 

It  was  now  the  end  of  June.  Mr.  Appleboy  has 
planned  to  take  his  family  abroad,  but,  although 
the  annual  adjournment  of  court  for  vacation  is  at 
hand,  through  the  dilatory  tactics  of  Maria's  petti- 
fogging counsel,  the  case  is  still  untried. 

Appleboy  had  been  in  attendance  at  court  eleven 
separate  times,  but  the  only  satisfaction  which  he 
receives  is  the  assurance  that  he  will  be  paid  fifty 
cents  for  each  one  of  his  subpoenas.  He  is  by  this 
time  so  disgusted  with  the  whole  business  and  has 
taken  such  a  fierce  dislike  to  all  judges,  district  at- 


126         THE  PRISONER  AT  THE  BAR 

torneys,  policemen  and  lawyers,  that  he  would  long 
ago  have  thrown  up  the  case  had  it  not  been  for  the 
fact  that  he  has  a  vague  idea  that  in  so  doing  he 
might  be  compounding  a  felony.  His  desire  to  set 
an  example  as  a  model  citizen  has  long  since  evap- 
orated. Countless  members  of  the  Holohan  family 
beset  him  at  home  and  at  the  office,  beseeching  him 
for  clemency. 

It  is  possible  that  without  consulting  the  district 
attorney,  and  under  the  assumption  that  he  must 
remain  at  hand  as  a  witness,  he  gives  up  Europe  and 
takes  a  house  on  the  mosquito  coast  instead.  His 
wife  is  very  unpleasant  about  it.  She  hints  that 
Appleboy  need  not  have  been  so  vindictive  in  the 
first  place.  After  he  has  cancelled  his  passage,  and 
the  whole  family  are  safely  ensconced  for  the  sum- 
mer, Appleboy  discovers  that  cases  in  which  the  de- 
fendants have  been  released  upon  bail  are  not  tried 
during  July,  August,  and  September.  Appleboy  ^s 
feeling  can  be  easily  imagined.  It  is  needless  to 
say  that  he  does  not  impart  the  information  to 
his  lady. 

The  summer  proves  generally  unsatisfactory. 
The  visits  of  Maria's  family  and  their  efforts  to  per- 
suade him  not  to  prosecute  are  redoubled.  Most 
of  them  are  domestics  on  their  evenings  '*out," 
plentiful  of  tears  and  reproaches.  It  is  impossible 
to  escape  them.  He  also  receives  numerous  letters 
from  the  lady's  attorney  suggesting  that  he  call  at 
the  latter 's  office.  These  he  has  systematically 
ignored. 

DELAY   THE   EIGHTH 

October  comes.  The  family  return.  Once  more 
the  familiar  subpoena  is  served  upon  our  hero  at  his 
office.    At  the  sight  of  it  he  scowls  fiercely  as  he 


THE   LAW'S   DELAYS  127 

w  Pitches  tbe  white  smoke  sailing  up  the  air  shaft  into 
the  azure  of  the  sky.  It  is  a  beautiful  autumn  day. 
He  recalls  the  police  court,  and  the  grand  jury,  the 
Criminal  Courts  building,  the  General  Sessions,  and 
Maria  and  Terence,  and  his  miserable  summer! 
Vestryman  Appleboy  mutters  something  very  much 
resembling  profanity.  He  thinks:  ^'If  I  had  not 
tried  to  punish  that  cook  for  stealing  the  teapot, 
why! — I  might  be  spending  to-day  in  Eome  or 
Paris!'*  The  next  morning,  however,  finds  him 
once  more  on  his  dreary  way  to  court. 

He  consults  Jones  again  upstairs,  who  promises 
by  all  that  is  holy  that  nothing  shall  prevent  a  trial. 
The  case  is  marked  **Keady,"  without  opposition, 
and  the  assistant  district  attorney  moves  the  indict- 
ment. 

*^ Maria  Holohan  to  the  bar!"  calls  the  clerk,  as 
a  jury  is  rapidly  empanelled. 

Appleboy  is  exultant.  He  is  to  reap  the  reward 
of  virtue  and  fidelity  to  principle.  At  last  the  crim- 
inal is  to  be  made  to  pay  the  penalty.  He  looks 
eagerly  for  Maria. 

**  Holohan!  Maria  Holohan!''  reiterates  the 
clerk. 

But  Maria  comes  not. 

**Call  her  in  the  corridor,"  directs  the  judge  to 
the  officer  at  the  door. 

There  is  a  sudden  silence  in  the  court-room.  No 
response  is  heard  outside. 

The  assistant  district  attorney  says  something  to 
the  judge,  who  nods  to  the  clerk. 

*' Maria  Holohan,  come  forth  and  answer  pursu- 
ant to  the  terms  of  your  recognizance  or  your  re- 
cognizance will  be  forfeited,"  shouts  that  official. 

There  is  no  reply. 


128         THE  PEISONER  AT  THE  BAK 

^'Terence  Holohan,  bring  forth  Maria  HoloJian, 
for  whom  you  are  bound  pursuant  to  the  terms  of 
your  recognizance,  or  your  recognizance  will  be  for- 
feited/' solemnly  intones  the  clerk. 

Terence  arises  and  comes  slowly  forward  from 
where  he  has  been  sitting. 

**Are  you  the  bondsman  in  this  casef  asks  the 
clerk. 

^*0i  am!''  replies  Terence. 

*^ Where  is  the  defendant?" 

Terence  looked  sheepish. 

*^ Where  is  the  defendant?"  repeats  the  clerk 
sharply. 

^'In  Ireland!  Bad  cess  to  her!"  answers  Ter- 
ence. **And  divil  a  bit  can  Oi  bring  her  forth,"  he 
murmurs,  *^whin  she's  in  the  ould  country!" 

** Forfeit  the  bail!"  orders  the  judge. 

Appleboy  grasps  the  arm  of  the  assistant. 

*^ What's  the  trouble?"  he  asks  anxiously. 

*  ^  She 's  skipped ! ' '  answers  the  other  with  a  grim 
laugh.    *^ That's  all." 

^'H 1 ! — I  mean,  thank  God!"  exclaims  Vestry- 
man Appleboy. 

This,  gentle  reader,  is  what  might  happen  to  you 
if  your  cook  should  steal  the  teapot. 


CHAPTER   Vin 
RED  TAPE 

Mb.  Appleboy  makes  his  way  from  the  court-room 
to  the  corridor  of  the  Criminal  Courts  building  a 
sadder,  wiser  and  more  chastened  member  of  so- 
ciety. He  now  has  personal  knowledge  of  the  way 
in  which  our  criminal  laws  are  enforced  and 
some  idea  of  the  administration  of  criminal  justice 
in  general  in  New  York  City.  He  has  been  dragged 
down  to  the  Criminal  Courts  building,  to  the  dis- 
trict attorney's  office,  the  grand  jury  room,  and  the 
General  Sessions  not  less  than  a  dozen  times,  and 
he  now  takes  a  solemn  vow  that  never,  if  he  can  pos- 
sibly avoid  it,  will  he  be  prevailed  upon  to  go  there 
again. 

Our  defeated  hero  on  reaching  home  finds  Mrs. 
Appleboy  waiting  luncheon  for  him. 

**Well,  Silas,''  she  inquires,  **has  that  woman 
been  convicted  at  last?" 

Her  husband  laughs  somewhat  shamefacedly. 

**No ;  I'm  afraid  she  has  gotten  the  best  of  us,"  he 
replies,  unfolding  his  napkin  and  beaming  pleas- 
antly upon  his  better  half.  **The  fact  is  that  she 
has  skipped  her  bail — gone  back  to  Ireland. ' ' 

**What!"  returns  Mrs.  Appleboy.  **Do  you 
mean  to  say  that  that  woman  has  been  allowed  to 
get  away  after  you  have  been  doing  nothing,  ap- 
parently, for  the  last  six  months  but  spend  your  time 
in  those  miserable  court-rooms  down  there?  It's 
outrageous." 

129 


130         THE  PRISONER  AT  THE  BAB 

**0]i,  you  can't  help  that/'  he  replies,  **so  l^ng  as 
prisoners  are  admitted  to  bail — they  have  the  sacred 
privilege,  guaranteed  under  our  Constitution,  of 
running  away. ' ' 

*  *  Rubbish ! ' '  exclaims  the  lady. 

**And  do  you  know,''  continues  Appleboy,  *4t 
really  is  a  tremendous  relief  to  feel  that  I  shall  not 
have  to  take  the  witness  stand  and  be  cross-exam- 
ined as  to  my  past  career  by  some  miserable  little 
shyster  lawyer  from  the  Tombs." 

** Why,  Silas,"  interrupts  his  wife  sharply,  **what 
have  you  been  doing  that  you  are  ashamed  to  tell 
of!" 

**0h,  I  didn't  mean  that,"  he  adds  hastily,  '*but 
they  ask  such  embarrassing  questions;  I  might 
have  to  tell  how  much  property  I  own,  and  then  the 
tax  collector  would  get  after  us." 

** Speaking  of  property,"  continues  Mrs.  Apple- 
boy,  ** Where's  the  teapot!" 

Appleboy  gazes  at  her  blankly.  In  the  excite- 
ment attendant  upon  Maria's  non-appearance  in  the 
court-room,  the  family  heirloom  had  completely  es- 
caped his  mind. 

**I  forgot  all  about  it,"  confesses  Appleboy. 

** Silas!"  cries  his  wife.  **I  should  think  that 
after  all  your  experiences  you  would  have  had  sense 
enough  not  to  leave  the  Criminal  Courts  building 
without  bringing  that  teapot  with  you.  How  do  you 
know  Maria  hasn't  taken  it  with  her  to  Ireland?" 

*'0h,  I'm  sure  she  hasn't,"  answers  her  husband; 
**it's  down  at  the  police  station;  they  tagged  it, 
you  know,  and  left  it  in  the  custody  of  the  ser- 
geant. ' ' 

**Well,  hurry  through  your  dinner,"  commands 


EED   TAPE  131 

his  wife,  *^and  go  right  down  and  get  it.  I  am  sur- 
prised at  you/' 

Appleboy  skips  his  usual  demi-tasse  and  fra- 
grant perfecto,  the  result  of  which  omission  is  to 
leave  him  but  half  satisfied  and  with  a  feeling  of 
incipient  indigestion,  and  betakes  himself  as  fast 
as  possible  to  the  police  station,  where  he  has  last 
seen  the  teapot.  Now  the  police  station,  as  is  a 
way  with  police  stations,  is  located  without  any  ref- 
erence whatever  to  the  conveniences  of  transporta- 
tion, hence  Vestryman  Appleboy  is  obliged  to  walk 
some  ten  or  twelve  blocks  towards  the  river  after 
a  heavy  meal,  and  reaches  his  destination  very  much 
out  of  breath  and  in  a  distinctly  ill  humor.  To  his 
surprise  the  doorkeeper  at  once  recalls  him. 

''How  are  you,  Mr.  Appleboy?  Come  right  in," 
says  that  functionary  in  greeting. 

' '  How  do  you  do  T '  responds  Appleboy.  ' '  I  have 
come  to  get  my  teapot. ' ' 

''Ask  the  sergeant  about  it,''  directs  the  door- 
man. 

So  Appleboy  makes  his  way  to  the  desk,  where  he 
is  again  recognized,  this  time  by  the  sergeant  on 
duty. 

"Well,  Mr.  Appleboy,"  remarks  the  sergeant, 
"what  became  of  that  cook  of  yours?  She  was  a 
bad  one !    I  hope  they  convicted  her. ' ' 

"They  did  not,"  replies  Mr.  Appleboy;  "they 
didn  't  even  get  a  chance  at  her.    She  got  away. ' ' 

"Jumped?"  inquires  the  sergeant  with  a  grin. 

"That's  what  she  did,"  acknowledges  Appleboy, 
"after  she  had  kept  me  chasing  up  and  down  for 
nearly  six  months." 

"Oh,  she  was  a  sly  one,"  answers  the  sergeant 


132         THE  PRISONER  AT  THE  BAR 

sympathetically.  **A  little  vacation  up  the  river 
would  have  done  her  good. '  * 

**I  suppose  there's  no  objection  to  my  having  the 
teapot  back,  is  there  T' 

*^Sure  not/'  answers  the  sergeant.  **It's  yours, 
ain't  it?    Of  course  you  can  have  it  back." 

**Do  you  mind  letting  me  have  it  then?"  asks 
Appleboy. 

**0h,  we  haven't  got  your  teapot!"  exclaims  the 
sergeant.  **That  was  handed  over  to  the  property 
clerk  at  Police  Headquarters.  I  suppose  when  the 
case  was  set  for  trial  the  pot  was  sent  down  to  the 
district  attorney's  office;  he's  probably  got  it  locked 
up  in  his  safe, — I  mean  whatever  assistant  was  going 
to  try  the  case." 

**Well,  well,"  says  Mr.  Appleboy;  **of  course,  I 
assumed  it  was  right  here,  where  I  saw  it  last. 
What  would  you  advise  me  to  do  ? " 

**  Better  go  right  down  and  see  the  assistant  dis- 
trict attorney,"  says  the  sergeant.  ** Skipped  her 
bail,  did  she  ?    Well,  that 's  a  pretty  good  one,  too ! ' ' 

Although  it  is  now  three  o'clock,  Mr.  Appleboy 
goes  to  the  nearest  elevated  station  and  takes  the 
train  down  town.  This  occupies  about  half  an 
hour.  He  gets  off  at  the  corner  of  Franklin  Street 
and  walks  to  the  Criminal  Courts  building.  He  is 
now  thoroughly  familiar  with  this  lugubrious  lo- 
cality and  finds  the  elevator  without  difficulty,  as- 
cending amid  the  usual  odoriferous  company  to 
the  floor  upon  which  Mr.  Smith,  the  assistant  dis- 
trict attorney,  has  his  office.  Mr.  Smith's  door,  how- 
ever, is  locked,  and  inquiry  from  a  deaf  attendant 
in  a  neighboring  corridor  elicits  the  fact  that  the 
assistant  is  engaged  in  trying  a  murder  case  in  Part 


EED   TAPE  133 

IV  of  the  General  Sessions.  Appleboy  now  bethinks 
him  of  Jones  and  forthwith  descends  to  the  next 
tier  of  offices,  but  there  finds  to  his  chagrin  that  the 
latter  also  is  trying  a  case. 

Determined  not  to  be  thwarted  by  any  such  trifling 
matter,  our  hero  takes  the  elevator  to  the  second 
floor  of  the  building,  upon  which  the  court-rooms  are 
located.  He  first  applies  at  Part  I.  The  superan- 
nuated attendant  at  the  door  eyes  him  sharply,  asks 
him  for  a  subpoena,  and  upon  his  failure  to  produce 
it  denies  him  admittance.  Appleboy,  naturally  in- 
dignant, inquires  the  reason.  The  watchdog  at  the 
door  brusquely  replies  that  persons  having  no  busi- 
ness in  the  court-room  are  not  permitted  to  enter. 

''But  I  want  to  speak  to  Mr.  Jones.'' 

''Well,  he  can't  see  you  now,  anyhow,"  replies 
the  doorkeeper.  "It  won't  do  you  a  particle  of 
good  to  go  in;  he's  right  in  the  middle  of  summing 
up  the  case  to  the  jury." 

This  seems  a  sufficient  excuse,  even  to  our  much- 
annoyed  old  gentleman,  and  he  thereupon  makes  his 
way  to  the  court-room  in  which  he  has  been  in- 
formed that  Smith  is  disporting  himself.  Here  he 
makes  a  second  attempt  to  secure  admission.  On 
this  occasion  there  is  not  even  the  question  of  a  sub- 
poena. No  one  can  be  admitted,  because  the  judge 
is  *  ^  charging  the  jury. ' '  The  answer  is  definite  and 
final. 

The  doorkeeper,  however,  is  a  good-natured,  ge- 
nial, warm-hearted  Irishman,  and  notes  with  some 
sympathy  the  disappointment  and  chagrin  of  the 
weary  little  old  man.  Appleboy  observes  the  benig- 
nity of  the  other's  expression  and  tenders  a  cigar, 
— ^not  what  is  commonly  known  about  the  building 


134         THE  PRISONER  AT  THE  BAR 

as  a  ^^ cigar*'  (six  for  a  quarter)  or  even  a  '^good 
cigar'*  (a  ten-center),  but  a  bang-up,  A-1,  twenty- 
five-cent  Havana,  with  a  gorgeous  coat  of  many 
colors.  Being  very  tired  he  lights  another  for  him- 
self.   The  two  converse  amicably. 

It  now  develops  that  the  doorkeeper  not  only  re- 
members Appleboy,  but  the  case  and  the  teapot,  and 
finally,  having  become  conversant  with  the  entire 
situation,  he  pronounces  judgment,  namely,  that  Mr. 
Appleboy  will  find  the  teapot  at  the  property  clerk's 
office  at  Police  Headquarters ;  that  while  it  is  possi- 
ble that  it  might  remain  in  the  custody  of  one  of  the 
assistants,  or  in  charge  of  the  property  clerk,  at- 
tached to  the  district  attorney's  office,  it  is  very  un- 
likely that  such  is  the  case,  since  the  defendant  was 
never  placed  on  trial.  He  therefore  advises  Ap- 
pleboy to  return  with  all  haste  to  300  Mulberry 
Street  and  secure  the  return  of  his  property  from 
the  person  there  having  it  in  charge.  Appleboy  is 
very  much  pleased ;  he  begins  to  regard  himself  as 
quite  a  ** mixer,"  while  for  a  brief  moment  visions 
of  running  for  mayor  or  perhaps  for  alderman 
hover  in  his  mind;  and  after  presenting  the  door- 
keeper with  a  couple  more  Havanas  he  makes  his 
way  out  of  the  building  upon  the  Center  Street  side. 

Appleboy  supposes,  as  is  not  unnatural,  that 
Police  Headquarters  must  be  somewhere  in  the  im- 
mediate neighborhood  of  the  Criminal  Courts  build- 
ing. A  laborer,  in  response  to  his  question,  waves 
his  hand  in  a  northerly  direction,  and  Appleboy  sets 
out,  traversing  what  seems  to  him  to  be  an  intermi- 
nable distance.  Every  one  whom  he  addresses  states 
that  Headquarters  is  just  a  block  or  two  farther  on. 
Soon  he  finds  himself  on  Mulberry  Street ;  swarms  of 


EED    TAPE  135 

little  children  congregate  upon  the  sidewalk  and 
pass  comments  upon  his  appearance;  Italian  ladies 
in  faded  negligee  look  down  upon  him  from  upper 
windows;  bunches  of  macaroni  in  a  half-solidified 
condition  stream  from  frame-works  erected  in 
the  areas,  and  Appleboy  shudders  as  he  thinks  of  the 
germs  wafted  down  the  side  streets  and  from  the 
open  windows  of  the  tenements  which  must,  as  he 
believes,  collect  and  form  a  thick  crust  upon  the  sur- 
face of  this  unattractive  variety  of  nutriment.  From 
time  to  time  he  crosses  the  street  for  the  purpose  of 
avoiding  a  fight  between  small  boys  or  a  group  of 
children  dancing  around  an  organ;  occasionally  he 
is  obliged  to  walk  in  the  middle  of  the  street  itself. 
After  twenty  minutes  he  comes  in  sight  of  an  inhos- 
pitable-looking structure,  which,  he  is  informed  by 
the  peanut  seller  upon  the  corner,  is  that  for  which 
he  seeks. 

**Polica  Headquarta!"  chatters  the  Italian  and 
grins;  he  knows  well  enough  what  it  is,  and  **many 
there  be  that  go  in  thereat." 

Appleboy  crosses  the  street  and  ascends  the  steps, 
meeting  as  he  does  so  a  squad  of  policemen  who 
bang  open  the  door  and  come  marching  down  in 
pairs.  He  shrinks  to  one  side,  and  then  timidly 
makes  his  entry.  An  officer  in  the  hall  inquires  his 
business. 

*^I  desire  to  see  the  property  clerk,"  says  Mr.  Ap- 
pleboy, *  *  and  to  secure  the  return  of  a  teapot  which 
was  stolen  from  me." 

**The  property  clerk's  office  closes  at  four 
o'clock,"  says  the  officer;  ''you'll  have  to  come  to- 
morrow morning,  at  nine." 

Appleboy  is  disgusted ;  he  has  spent  what  is  prac- 


136         THE  PRISONER  AT  THE  BAR 

tically  an  entire  afternoon  in  the  pursuit  of  his  tea- 
pot and  has  accomplished  nothing. 

*^It^s  outrageous/'  he  cries;  *^the  idea  of  a  pub- 
lic office  closing  at  four  o'clock  in  the  afternoon! 
What  do  these  fellows  do,  I  would  like  to  know,  to 
earn  their  salary?  Nine  to  four, — pooh!  Why,  it 
isn't  half  a  day's  work.'' 

The  officer  has  turned  on  his  heel  and  walks  slowly 
away,  leaving  Mr.  Appleboy  fuming  by  the  door. 
The  corridor  is  musty  and  dark,  its  stone  flagging 
worn  by  the  tread  of  millions  of  heavily  booted  feet. 
Poor  old  Mr.  Appleboy  is  very  tired ;  the  dingy  win- 
dows, the  gloomy  corridor,  the  unsympathetic  police- 
man, the  noise  and  smells  of  the  Italian  quarter,  the 
weary  trip  to  the  district  attorney 's  office  and  to  the 
station  house  have  brought  him  almost  to  the  verge 
of  tears.  He  is  ashamed  to  go  home  and  tell  his 
wife  that  he  has  accomplished  nothing, — he  has  not 
even  seen  the  teapot.  Feeling  very  small  indeed 
Appleboy  pushes  open  the  door  and  passes  out  upon 
Mulberry  Street.  No  one  notices  him ;  in  this  official 
world  a  bank  president  is  but  a  unit  among  the 
countless  multitudes  of  the  public.  He  stumbles  into 
a  subway  train,  seeks  sanctuary  in  his  club  and 
takes  a  Turkish  bath. 

Let  us  pass  over  the  painful  scene  upon  the  return 
of  Appleboy  teapotless.  His  lady  is  hardly  to  be 
blamed  for  showing  irritation  over  her  husband's 
failure  to  recover  that  interesting  relic  and  valuable 
domestic  adjunct.  She  knows  she  could  have  done 
much  better  herself.  At  any  rate  she  would  not  now 
calmly  return  home  from  the  court  with  the  humili- 
ating admission  that  the  prisoner  had  escaped  and 
that  the  teapot  had  disappeared.    Things  are  very 


BED    TAPE  137 

unpleasant  that  evening,  and  no  suggestion  on  the 
part  of  Appleboy  that  they  go  to  the  theatre  or  the 
opera  will  bring  a  smile  over  the  features  of  his 
irate  spouse. 

The  next  morning  Mr.  Appleboy  is  up  betimes. 
He  does  not  wait  for  his  wife  to  come  down  to  break- 
fast, but  pours  himself  a  cup  of  coffee  and  snatches 
a  roll  at  the  sideboard.  A  quarter  to  nine  finds  him 
at  Police  Headquarters.  In  the  clear  morning  sun- 
shine the  building  does  not  look  so  repellent,  and  he 
trots  up  the  steps,  pushes  open  the  door,  and,  avoid- 
ing his  adversary  of  the  afternoon  before,  saunters 
nonchalantly  down  the  corridor  until  he  sees  a  small 
door  at  the  top  of  a  couple  of  steps  bearing  the 
legend,  ** Property  Clerk's  Office." 

The  property  clerk,  whoever  he  is,  is  already 
there.  Appleboy  finds  himself  in  a  small  room  di- 
vided by  a  wire  grating;  this  has  a  small  opening 
through  which  he  is  obliged  to  converse  with  the 
official  in  charge. 

**I  have  come  to  get  a  teapot  which  was  stolen 
from  me,''  explains  Appleboy. 

**What  is  the  state  of  the  case?"  inquires  the 
property  clerk. 

'*The  thief  has  forfeited  his,  I  mean  her,  bail," 
replies  our  hero. 

'*What  was  her  name!" 

**  Maria  Holohan." 

**When  did  she  steal  the  teapot?" 

''Last  June." 

''Where  did  you  last  see  the  teapot!"  asks  the 
clerk. 

"At  the  station  house,  with  a  tag  on  it,"  Apple- 
boy replies. 


138         THE  PEISONEE  AT  THE  BAE 

**Well,  what  makes  you  think  we  have  it?"  asks 
the  clerk. 

**Why,  the  policeman  down  at  the  court-room 
told  me  that  you  kept  all  the  property  which  was  re- 
tained as  evidence,"  answers  Appleboy. 

The  clerk  rapidly  turns  over  the  leaves  in  a  large 
book.  Evidently  he  finds  what  he  is  looking  for  and, 
nodding,  answers:  **Well,  here^s  the  record  of  the 
case.  One  silver  teapot,  value  fifty.  Officer  mak- 
ing arrest,  Patrick  McGinnis.  Prisoner's  name, 
Maria  Holohan.  Claimant's  name,  Silas  Appleboy. 
That's  you,  is  it?  Stolen  property,  teapot.  Held 
for  evidence,  yes.  There  you  are,  and  you  say  now 
she  skipped  her  bail?" 

*  ^  Certainly, "  answers  Appleboy. 

**And  you  want  the  teapot?" 

**0f  course  I  do,"  answers  Appleboy. 

**Well,  first  you  have  to  get  an  order  from  the 
court  to  that  effect,"  says  the  clerk. 

Appleboy  almost  loses  his  temper.  Has  he  got  to 
make  another  trip  down  to  that  miserable  Criminal 
Courts  building? 

^*Look  here,"  he  exclaims  rather  angrily,  ''what 
is  the  sense  of  all  this  red  tape  ?  The  case  is  over,  I 
own  the  teapot, — why  don't  you  give  it  to  me  and  be 
done  with  it?" 

The  clerk  smiles, — a  trifle  condescendingly,  thinks 
Appleboy. 

''My  dear  sir,"  he  says,  "are  you  aware  that  I 
have  no  means  of  knowing  that  you  are  the  Silas 
Appleboy  who  owns  this  teapot,  except  your  own 
say  so?" 

"Isn't  that  enough?"  shouts  Appleboy. 

"It  ought  to  be,"  responds  the  clerk,  "but  some- 


BED   TAPE  139 

times  it  isn't.  I  don't  even  know  that  the  woman 
has  skipped  her  bail. ' ' 

Appleboy  begins  to  see  the  force  of  the  clerk's 
argument. 

*^I  never  imagined  that  a  gentleman  would  be 
tossed  about  from  pillar  to  post,  as  I  have  been  since 
I  lost  that  teapot.  What  is  it  you  say  I  must  do; 
get  an  order  from  the  mayor?" 

^*No,  no, — the  judge,"  answers  the  clerk. 

**How  shall  I  get  it?"  inquires  Appleboy  rather 
huffily. 

**0h,  ask  the  assistant  district  attorney;  he  will 
probably  get  it  for  you." 

** Thank  you,"  says  Appleboy  stiffly,  and  marches 
out.  This  time  he  takes  the  subway  to  Canal  Street, 
reaching  the  Criminal  Courts  building  a  few  mo- 
ments after  nine.  Much  to  his  surprise  Mr.  Smith  is 
already  down  at  his  office  hard  at  work. 

**Ah,  Mr.  Appleboy,  good-morning  to  you,"  he 
exclaims. 

**How  are  you,  Mr.  Smith?"  responds  Appleboy. 
**I  have  come  after  that  confounded  teapoto" 

**0h,  the  one  your  cook  stole.  I  remember  it  well. 
Wliereisit?" 

**At  Police  Headquarters,"  responds  Appleboy, 
*'and  they  want  me  to  get  an  order  from  some 
judge  or  something  before  they  will  give  it  up  to 
me." 

'* That's  easily  managed,"  responds  the  assistant, 
'*but  you  have  to  get  a  waiver  from  this  office  of 
any  claim  that  we  may  have  upon  the  teapot  as  evi- 
dence. There  is  a  regular  printed  blank.  I  think, 
inasmuch  as  Jones  was  actually  going  to  try  the 
case  when  Maria  skipped  her  bail,  that  he  had  better 


140         THE  PRISONER  AT  THE  BAR 

fill  it  out.    After  you  get  it,  come  back  here  and  I'll 
make  the  application  for  you.'' 

Appleboy  begins  to  feel  better.  Here  is  some  one 
that  knows  his  business.  He  lights  a  cigar  and  de- 
scends to  the  next  floor,  where  he  finds  his  old  friend 
Jones.  Jones  is  quite  ready  to  give  the  desired 
waiver,  and  selects  one  from  a  pigeon-hole  in  his 
desk.    He  fills  it  out  to  read  as  follows : 


New  York,  October  7,  1907. 

District  Attorney's  Office, 
County  of  New  York. 


The  People  of  the  State  of 
New  York  on  the  com- 
plaint of 


For  Grand  Larceny 
Silas  Appleboy  /in  the  Second  Degree 

against 

Maria  Holohan. 


This  office  has  no  further  use  for  the  property  taken  from 
the  defendant  in  this  case,  and  now  in  the  possession  of  the 
property  clerk  of  the  police  department.  No  objection  is 
therefore  made  by  me  to  its  delivery  to  any  person  who 
proves  to  your  satisfaction  his  right  to  the  possession  of 
the  same, — one  silver  teapot. 

A.  BIRD, 
District  Attorney. 
Per  William  Jones,  D.  A.  D.  A. 

To  the  Property  Clerk  of  the  Police  Department,  Borough 
of  Manhattan,  City  of  New  York. 

''Now  we'll  go  down  and  see  if  the  judge  will  give 
us  an  order,"  says  Jones. 

''Why,  is  there  any  doubt  about  itT'  inquires 


EED    TAPE  141 

Appleboy,  fearful  that  perhaps  after  all  he  is  going 
to  lose  his  teapot. 

**It  all  depends  on  circumstances,"  answers 
Jones.  *  ^  Some  of  the  judges  are  perfectly  willing  to 
give  orders  while  others  are  not.  You  see,  the  trou- 
ble in  your  case  is  that  the  woman  has  never  been 
tried,  so  that  the  question  of  whether  or  not  she 
stole  your  teapot  has  really  not  been  decided  at  all. ' ' 

**The  wicked  flee — P'  murmurs  Appleboy  in  his 
most  approved  Friday  evening  manner. 

They  take  the  elevator  down  to  the  second  floor, 
and  make  their  way  to  that  part  of  the  Sessions 
upon  whose  calendar  Maria's  case  appeared  at  the 
time  she  forfeited  her  bail.  A  trial  is  going  on,  and 
a  pompous  little  lawyer  is  cross-examining  a  stout 
lady  who  weeps  and  laughs  hysterically  by  turns. 
As  the  lawyer  pauses  for  breath  Mr.  Jones  arises 
and  addresses  the  court. 

**May  it  please  your  Honor,  in  the  case  of  the 
People  against  Maria  Holohan,  charged  with  grand 
larceny,  the  bail  in  which  was  forfeited  before  your 
Honor  about  a  week  ago,  I  desire  to  apply  for  an 
order  directing  the  property  clerk  at  Police  Head- 
quarters to  turn  over  the  property,  namely  a  silver 
teapot,  to  the  complainant,  who  is  here  in  court." 

**But  the  case  has  never  been  tried,  you  say,  Mr. 
Jones,"  objects  his  Honor. 

**That  is  all  very  true,"  returns  the  assistant, 
'*but  the  woman  has  run  away,  her  bail  has  been  for- 
feited, and  judgment  entered  and  satisfied." 

**  Supposing,  however,  she  were  captured  and 
brought  back  and  tried,  how  do  I  know  but  that  the 
jury  might  acquit  her!  And  they  might  acquit  her 
on  the  specific  ground  that  the  teapot  belonged  to 


142         THE  PEISONER  AT  THE  BAR 

her,  and  not  to  the  defendant.  I  should  then  be  in  a 
position  of  having  directed  its  return  to  a  person  to 
whom  it  did  not  belong.  * ' 

*  *  Of  course  what  your  Honor  says  is  entirely  cor- 
rect," answers  Jones,  ''but  it  is  unlikely  that  we 
shall  ever  hear  of  the  case  again." 

*'I  don^t  know  about  that,"  answers  the  judge. 
**Your  office  might  become  suddenly  extremely  en- 
ergetic and  try  to  extradite  her." 

''Well,  it  seems  rather  hard  on  Mr.  Appleboy," 
responds  Jones. 

*'0f  course  it's  hard;  he  has  my  entire  sympa- 
thy," replies  the  judge;  "but  I  cannot  take  the  re- 
sponsibility of  deciding  who  owns  property  in  a 
case  which  has  not  been  tried.  I  am  not  here  for 
that  purpose.  Let  him  take  the  proper  legal  steps 
to  secure  the  return  of  his  property  in  the  civil 
courts. '  * 

Appleboy,  who  has  understood  very  little  of  this 
colloquy,  but  who  supposes  that,  for  some  entirely 
insufficient  reason  apparently,  the  judge  is  trying 
to  block  his  efforts  to  secure  the  return  of  his 
property,  suddenly  jumps  to  his  feet  and  shouts : — 

"Look  here,  your  Honor,  I  would  like  to  have  a 
word  about  this,  if  I  may!  That  teapot  of  mine  was 
stolen  last  June ;  I  caught  my  cook  in  the  very  act  of 
selling  it  to  a  pawnbroker;  I  had  her  arrested  on 
the  spot ;  she  admitted  her  crime,  and  acknowledged 
her  guilt  in  the  police  court.  My  teapot  is  tagged 
and  locked  up  in  a  room  at  Police  Headquarters, 
and  they  won't  give  it  to  me  unless  your  Honor  will 
grant  an  order  directing  them  to  do  so.  Kindly 
tell  me  what  I  am  to  do. " 

The  crowd  in  the  court-room  titters  and  the  court 


BED    TAPE  143 

attendant  raps  loudly  with  a  paper-weight  on  the 
oaken  railing  for  silence.  The  judge  regards  Mr. 
Appleboy  good-naturedly. 

**I  am  very  sorry  you  have  had  so  much  trouble. 
My  position  in  the  matter  simply  is  that  I  cannot 
personally  take  the  responsibility  of  deciding  to 
whom  this  property  belongs,  particularly  when  no 
jury  has  ever  passed  upon  the  guilt  or  innocence  of 
the  defendant.  I  shall  be  very  glad,  however,  to 
approve  any  certificate  which  the  district  attorney 
may  choose  to  give  you  stating  that  he  has  no  further 
need  or  use  for  the  property." 

Appleboy  brightens. 

**Your  Honor,"  says  he,  **Mr.  Jones  has  already 
given  me  such  a  certificate,  and  I  shall  be  much 
obliged  to  you  if  you  will  approve  it.  ^ ' 

Jones  hands  it  to  the  judge,  who  writes  the  word 
**  Approved"  upon  it,  then  returns  it  to  the  assistant. 

**You  will  observe,"  says  his  Honor,  **that  all  I 
do  in  the  matter  is  to  approve  the  statement  of  the 
district  attorney  that  he  makes  no  objection  to  the 
delivery  of  the  property  to  any  person  who  proves 
to  the  satisfaction  of  the  property  clerk  his  right  to 
the  possession  of  the  same.  My  approval  really  does 
not  amount  to  anything  at  all.  I  cannot  grant  you  a 
court  order.  I  am  aware  that  several  of  my  asso- 
ciates might  do  so  under  exactly  similar  circum- 
stances, but  I  personally  do  not  care  to  assume  any 
such  responsibility.  Proceed  with  the  case  on  trial." 

Out  in  the  corridor  Appleboy  inquires  anxiously 
of  Jones  how  on  earth  he  is  going  to  prove  to  the  sat- 
isfaction of  the  property  clerk  his  right  to  the  pos- 
session of  the  teapot. 

**0h,  you  won^t  have  any  difficulty  at  all,"  says 


144         THE  PEISONEE  AT  THE  BAR 

Jones;  *^this  certificate  from  us,  with  the  judge's 
*0.  K.'  on  it,  is  equivalent  to  a  court  order,  even  if 
it  is  not  one  technically. ' ' 

/*I  don't  know,''  answers  Appleboy  doubtfully; 
**this  paper  seems  to  leave  it  up  to  me  to  persuade 
the  intelligence  of  the  property  clerk." 

*  ^  You  won 't  have  any  trouble, ' '  laughs  the  assist- 
ant.   *^Good-by." 

Mr.  Appleboy  leaves  the  building  once  more,  and 
again  takes  the  subway  to  Police  Headquarters. 

^^Back  again  r'  inquires  the  property  clerk 
pleasantly. 

^^I  have  a  certificate  from  the  district  attorney, 
approved  by  the  judge  giving  you  permission  to 
return  the  teapot  to  me,"  says  Appleboy,  shoving 
the  paper  through  the  wicket. 

The  clerk  takes  it. 

*  *  This  isn  't  a  court  order, ' '  says  he.  *  *  Still,  if  the 
woman  has  skipped  her  bail  and  the  judgment  has 
been  satisfied,  I  guess  we  can  take  a  chance  and  let 
you  have  your  teapot,  provided  of  course  you  are 
properly  identified.  You  see,  so  far  as  we  know,  you 
may  have  picked  this  certificate  up  on  the  street. 
The  thing  for  you  to  do  is  to  get  hold  of  the  officer 
who  made  the  arrest,  and  who  knows  all  about  the 
case,  and  have  him  identify  you." 

*  *  How  shall  I  do  that  ? ' '  asks  Appleboy,  very  much 
irritated.  **I  don't  know  where  he  is;  I  can't  go 
chasing  all  over  the  City  of  New  York  after  police 
officers;  I'm  sick  of  this  whole  business;  you  know 
perfectly  well  I  am  Silas  Appleboy,  else  I  shouldn't 
have  this  paper,  and  I  shouldn't  be  around  here 
trying  to  get  that  teapot." 

** Don't  be  too  sure  about  that,"  replies  the  prop- 


BED   TAPE  145 

erty  clerk.  **We  have  had  three  women  here  at  the 
same  time  claiming  the  same  pair  of  diamond  ear- 
rings, and  each  woman  looked  absolutely  respecta- 
ble. One  of  them  came  in  a  carriage  with  a  footman. 
We  found  out  afterwards  that  the  earrings  didn't 
belong  to  any  one  of  them,  but  to  an  entirely  dif- 
ferent person." 

Appleboy  loses  all  patience.  Just  as  he  is  about 
to  place  his  hands  upon  the  teapot,  presto,  it  van- 
ishes. Two  Italians  and  a  Chinaman,  escorted  by 
an  officer,  now  elbow  past  Appleboy,  who  disconso- 
lately gives  them  place.  He  is  *^up  against  it" 
again ;  there  is  no  help  for  it ;  rules  are  rules  and  the 
law  is  the  law.  How  now  to  find  Patrick,  the  officer  I 
He  begins  to  wish  he  had  been  nicer  to  Patrick; — 
if  he  had  been  a  little  more  liberal  in  the  way  of 
cigars  at  the  time  the  teapot  was  stolen,  things  might 
have  been  very  much  easier  for  him  now.  He  utters 
an  imprecation  under  his  breath  against  all  police- 
men and  police  red  tape.  Grinding  his  teeth,  he  goes 
to  the  nearest  telephone  booth  and  asks  to  be  con- 
nected with  the  precinct  to  which  Patrick  is  attached. 
The  operator  refers  him  to  3100  Spring,  namely, 
Headquarters, — ^but  there  he  is  informed  that  pri- 
vate citizens  may  not  be  connected  with  police  sta- 
tions. He  hangs  up  the  receiver  with  something 
almost  like  an  oath.  Poor  Vestryman  Appleboy! 
Let  us  not  be  too  hard  upon  him. 

It  is  now  half -past  eleven  o'clock.  He  takes  the 
car  uptown  and  returns  to  the  station  house,  but 
the  sergeant  informs  him  that  Patrick  is  down  in  the 
Criminal  Courts  building  as  a  witness  in  a  burglary 
case.  This  is  the  last  straw.  Frenzied,  he  rushes 
from  the  station  house,  takes  another  car  and  sits 
tensely  until  once  more  he  is  at  the  Criminal  Courts 


146         THE  PRISONER  AT  THE  BAR 

building.  Fortunately  he  has  had  the  forethought 
to  inquire  of  the  sergeant  to  which  of  the  four  parts 
of  the  General  Sessions  Patrick  has  been  subpoenaed, 
and  he  now  finds  that  it  is  the  same  court-room  at 
the  door  of  which  presides  his  friend  of  the  day 
before.  The  doorkeeper  greets  him  genially,  and 
in  response  to  Appleboy's  inquiries  replies,  shure, 
that  he  knows  Pat  McGinnis; — that  Pat  has  been 
there  all  the  morning,  but  has  just  shtepped  out  over 
to  Tom  Foley's  saloon.  Although  Appleboy  has  not 
been  inside  the  portals  of  such  a  place  since  he  was 
nineteen  years  old,  he  frantically  inquires  its  direc- 
tion, and,  fearful  lest  he  lose  the  object  of  his  search, 
dashes  across  the  street  to  the  corner  bar-room. 

The  little  old  gentleman  with  the  shining  silk  hat 
sticks  his  head  timidly  through  the  door  and  observes 
Patrick  at  the  end  of  the  bar  crooking  his  elbow  in 
the  customary  manner.  He  draws  an  inspiration 
from  the  sight ;  with  a  bland  smile  he  steps  up  to  the 
bar  himself,  slaps  the  officer  familiarly  on  the  back 
and,  pulling  oif  his  gloves,  remarks,  **Well,  Pat,  old 
boy,  how  do  you  feel  ?    Have  another  on  me ! ' ' 

Patrick  gazes  at  him  open-mouthed.  Can  this  be 
the  stiff,  little  old  bank  president  he  knew  six  months 
ago!  But  there  can  be  no  question  as  to  Appleboy 's 
intention  when  he  hears  the  latter  order  **two  rye 
high -balls  and  another-for-yourself  of  the  aston- 
ished barkeeper.  Appleboy  toasts  Patrick,  Patrick 
toasts  Appleboy.  Patrick  produces  cigars;  Apple- 
boy replaces  them  with  others,  larger  and  thicker 
than  any  seen  at  Foley's. 

**By  the  way,"  says  Appleboy,  *'step  up  to  Police 
Headquarters  with  me,  will  you,  Patf  Now  that  I 
happen  to  be  down  this  way,  I  might  as  well  take  that 
teapot  home  with  me,  don't  you  know." 


EED    TAPE  147 

''Sliure/'  says  Pat;  ** court's  adjourned  by  this 
time,  and  I  can  get  back  by  two  o  'clock  all  right. ' ' 

The  best  of  friends,  they  go  np  in  the  subway 
together  to  Police  Headquarters.  With  a  bold  front 
and  fearless  eye  Appleboy  enters  the  office  of  the 
property  clerk,  produces  his  certificate  from  the 
district  attorney,  and  demands  his  teapot. 

*  ^  This  officer  will  identify  me, ' '  says  he. 
**Shure  I  indentify  him/'  announces  Pat. 

The  clerk  takes  the  certificate,  opens  the  record 
book  and,  with  a  rubber  stamp,  enters  up  on  the 
back  of  the  original  report  the  words: 

*' Identified  by  officer 

as  owner  of  the  property/* 

'*  Write  your  name  there,"  says  he  to  Patrick,  and 
McGinnis  laboriously  scrawls  his  name  between  the 
lines. 

The  clerk  now  disappears  into  an  adjoining  room, 
presently  returning  with  an  object  about  the  size  of 
a  football,  wrapped  in  coarse  paper,  tied  with  a  mul- 
titude of  strings  and  bearing  a  tag. 

*  *  Here  you  are,  sir, ' '  says  he,  opening  the  door  in 
the  wire  grating  and  passing  the  football  to  Apple- 
boy,  whose  heart  beats  wildly. 

The  clerk  then  stamps  the  words  ^^ Delivered  on 
identification  of  officer^*  upon  his  record  book,  closes 
the  same  with  a  slam  and  turns  aside  to  other  more 
important  business.  How  simple  it  all  is  when  yon 
once  know  how  to  do  it ! 

' '  Easy,  ain  't  it  ? ' '  remarks  Pat. 

*^Easy  as  rolling  off  a  log,"  answers  Appleboy 
with  a  grim  smile. 


CHAPTEE   IX 

THE  TRIAL  OF  FELONIES 

It  is  a  fact,  which  may  at  first  appear  para- 
doxical, that  the  jury  in  the  ordinary  run  of  criminal 
cases  passes  upon  the  guilt  or  innocence  of  very  few 
professional  criminals.  A  moment's  consideration 
will  reveal  the  reason.  The  professional  criminal 
usually  has  a  ^^ record''  and  he  knows  full  well  that 
in  view  of  his  past  history,  if  there  be  any  sort  of  a 
case  against  him,  his  own  defence,  however  eloquent 
or  ingenious,  will  go  for  nothing.  An  affirmative 
answer  to  the  simple  question,  ' '  Have  you  ever  been 
convicted  ? "  is,  in  three  cases  out  of  five,  equivalent  to 
a  plea  of  guilty.  Now  it  is  an  understood  thing  that 
any  prisoner,  who  is  willing  to  admit  his  guilt  and 
save  the  county  the  expense  and  trouble  of  a  trial, 
shall  receive  some  consideration  in  return  there- 
for when  it  comes  time  to  impose  his  sentence,  and 
usually  he  expects  to  receive  in  addition  a  guarantee 
of  good  faith  from  the  assistant  district  attorney  in 
the  shape  of  the  latter 's  acceptance  of  his  plea  to  a 
lower  degree  of  the  same  crime.  The  real  ^*gun" 
is  apt  to  have  his  life  pretty  well  mapped  out.  He 
anticipates  serving  about  so  much  time  *4n  stir" 
and  figures  on  beating  about  every  other  case  before 
it  reaches  an  actual  trial.  If  worst  comes  to  worst, 
and  he  finds  he  must  face  a  jury  of  his  peers,  he 
dickers  for  the  lowest  plea  he  can  get.  Whole  court 
terms  often  go  by  without  a  single  professional  crook 

148 


THE   TRIAL   OF   FELONIES  149 

being  actually  tried.  If  one  of  them  is  ^  ^  caught  with 
the  goods''  he  generally  throws  up  his  hands  and 
stolidly  takes  his  medicine. 

The  ordinary  citizen  quite  naturally  gains  his  im- 
pressions of  the  administration  of  criminal  justice 
by  reading  accounts  of  sensational  trials.  He  imag- 
ines that  the  daily  life  of  the  prosecutor  consists  in 
demanding  the  conviction  of  hardened  felons  with 
sordid,  crime-tracked  features,  varied  by  occasional 
spectacular  *'star  cases"  where  counsel  for  the  de- 
fendant and  the  prosecutor  vie  with  one  another  in 
stupendous  outbursts  of  oratory  in  which  the  bird 
of  liberty  screams  unrestrained  and  Justice  franti- 
cally waves  her  scales.  He  supposes,  if  he  gives 
the  matter  any  consideration  at  all,  that  defendants 
languish  away  their  lives  in  the  Tombs  waiting  for 
trials  which  never  come,  and  that  influential  crim- 
inals walk  the  streets  while  the  indictments  against 
them  lie  accumulating  an  overcoat  of  dust  in  some 
forgotten  pigeon-hole.  He  frankly  assumes  that 
the  jury  system  is  pretty  nearly  a  failure,  and  knows 
of  his  own  knowledge,  or  thinks  he  does,  that  any 
one  with  enough  money  can  either  avoid  being  tried 
for  crime  at  all  or,  if  by  any  mischance  he  be  con- 
victed, can  easily  escape  punishment  or  at  least 
delay  it  indefinitely  by  technicalities  of  procedure 
and  appeals.  In  his  customary  dialect  he  **has  no 
use ' '  for  the  criminal  or  the  criminal  courts,  and  his 
only  dread  is  that  he  may  some  time  be  drawn  as  a 
juror  and  be  compelled  to  serve  in  a  region  of  the 
city  where  he  will  be  unable  to  find  a  satisfactory 
place  to  get  his  lunch  and  in  the  society  of  those 
whose  companionship  he  fancies  he  is  not  likely  to 
enjoy. 


150         THE  PRISONER  AT  THE  BAR 

Let  us  assume  that  Mr.  Ordinary  Citizen  lias  been 
so  unfortunate  as  to  receive  one  of  those  pink  slips 
which  call  upon  him  to  ^  *  all  business  or  other  matters 
lay  aside''  and  to  attend  at  Part  I  of  the  General 
Sessions  of  the  Peace  at  ten  o  'clock  on  the  first  Mon- 
day of  the  month.  He  finds  himself  in  a  large  and 
well-lighted  court-room,  at  one  end  of  which,  on 
a  dais,  sits  a  judge  more  or  less  surrounded  by 
various  persons  who  continually  approach  and 
engage  him  in  conversation.  At  a  desk  in  front, 
a  clerk  and  his  assistant  are  busy  with  piles  of 
documents,  which  "  0.  C."  learns  later  to  be  indict- 
ments, and  with  big  ledgers  which  are  in  fact  the 
*^ Minutes  of  the  Sessions."  The  room  is  crowded, 
all  the  benches  being  filled  with  a  varied,  but,  on  the 
whole,  a  respectable-appearing  assortment  of  hu- 
manity. In  front  of  the  judge  and  clerk,  wander- 
ing around  inside  an  enclosure,  at  one  side  of  which 
stands  the  temporarily  empty  jury-box,  are  several 
young  men  who  are  earnestly  engaged  in  talking  to 
the  lawyers,  complainants  and  policemen  who  throng 
at  the  bar. 

Suddenly  the  clerk  raises  his  voice  and  shouts, 
^'Harken  to  the  call  of  the  calendar!"  An  officer 
pounds  on  a  railing  with  a  paper-weight,  another  bel- 
lows, ' '  Find  seats  there !  An '  quit  talkin ' ! "  and  the 
judge,  gazing  at  a  long  sheet  of  foolscap  in  his  hand, 
remarks  inquiringly: 

** People  against  Murphy?" 

The  young  assistant  district  attorney  at  once 
answers : 

*  *  People  are  ready. ' ' 

**If  your  Honor  please,"  nervously  exclaims  a 
stout  man  pushing  his  way  to  the  front,  *Hhis  case 


THE   TRIAL   OF   FELONIES  151 

has  never  been  on  the  calendar  before.  I  was  only- 
retained  last  night  and  I  did  not  receive  any  notice 
that  it  was  to  be  tried  until  this  morning.  I  ask 
that  it  go  over  until  next  week.'* 

*^What  do  you  say,  Mr.  District  Attorney?"  asks 
the  judge. 

*^0h,  it's  a  very" simple  case,"  answers  the  assist- 
ant. *  *  There 's  no  reason  why  it  should  not  be  tried 
to-day. ' ' 

^*Well,  I'll  give  you  until  to-morrow,"  says  the 
judge.    ^^You  must  be  ready  then.'^ 

*^ People  against  Smith!"  he  continues. 

Both  sides  happen  to  be  ready  in  this  case. 

*' People  against  McCord?" 

* '  Defendant 's  going  to  plead, ' '  says  the  assistant. 

** People  against  Vermicelli?" 

*^We  expect  to  make  a  recommendation  in  that 
case,  your  Honor,"  announces  the  assistant, — and 
so  it  goes  until  fifteen  or  twenty  cases  have  been 
marked  ^^ Ready"  or  *^ Passed  for  the  day"  or  ad- 
journed to  let  the  defendant  get  his  witnesses  or,  in 
point  of  fact,  for  the  lawyer  to  extract  his  fee. 

The  clerk  then  calls  the  roll  of  the  jury,  and  after 
the  rush  which  ensues  to  present  excuses  to  the  effect 
that  the  talesman's  health  or  business  is  in  a  pre- 
carious condition,  the  court  settles  gradually  down 
to  its  routine  work. 

A  jury  is  empanelled  and  a  lank,  seedy-looking 
youth  takes  his  seat  at  the  bar  between  a  spruce, 
bald-headed  little  man  and  a  court  officer.  He  is 
charged  with  having  **  policy-slips  in  his  posses- 
sion. ' ' 

So  far  "  O.  C,"  our  juror,  has  been  impressed  with 
the  business-like  and  cheerful  manner  in  which  the 


152         THE  PRISONER  AT  THE  BAR 

proceedings  have  been  conducted.  Most  of  tlie  law^ 
yers,  instead  of  clamoring  for  a  trial  for  their  lan- 
guishing clients,  have  exerted  all  their  efforts  to 
secure  delays.  Then  he  learns  to  his  surprise  that 
the  average  length  of  time  which  elapses  between  a 
defendant's  arrest  for  felony  and  his  trial,  unless 
the  prisoner  be  out  on  bail,  is  less  than  one  week* 

**Jury  satisfactory  to  both  sides!''  inquires  the 
clerk. 

** Entirely  so,"  reply  the  little  bald-headed  man 
and  the  prosecutor  together. 

Suddenly  the  lank  youth  leans  over  and  whispers 
to  the  lawyer,  who  after  a  moment's  conversation 
beckons  to  the  prosecutor.  There  is  a  brief  consul- 
tation and  the  assistant  tosses  the  indictment  to  the 
clerk  with  the  announcement : 

*'He  pleads  guilty." 

The  defendant  gets  up  and  shuffles  to  the  bar, 

♦This  is  a  vast  improvement  over  the  conditions  which  existed  in 
this  regard  six  or  seven  years  ago,  when  defendants  in  prison  could 
count  themselves  fortunate  if  tried  within  three  weeks,  or,  if  on  bail, 
within  a  year.  It  was  by  no  means  unusual  to  have  cases  appear  upon 
the  calendars  from  three  to  five  years  old,  the  backs  of  the  indictments 
being  covered  with  the  names  of  assistants  long  since  departed  from 
official  life.  The  writer  once  tried  a  case  that  had  appeared  on  the 
calendar  twenty-eight  times,  and  cases  which  had  appeared  there 
from  ten  to  twenty  times  were  the  rule,  not  the  exception.  In  the 
days  when  the  present  district  attorney  was  a  deputy,  indictments 
were  so  carelessly  found  and  treated  that  in  order  to  clear  the  calendars 
bushel  baskets  of  them  would  be  brought  into  court  and  dismissed  "  on 
the  recommendation  "  of  the  district  attorney.  A  house-cleaning  proc- 
ess of  this  sort  would  ordinarily  occur  just  before  it  became  necessary 
to  make  an  official  report  on  the  number  of  cases  "  disposed  of."  To- 
day there  are  very  few  indictments  not  tried  within  the  year,  and 
almost  any  defendant  who  wants  one  can  get  a  speedy  trial,  such 
delays  as  arise  being  generally  caused  by  the  defendant  himself.  Of 
course  during  the  summer  months  when  but  two  courts  are  open,  and 
the  judges  sit  from  only  ten-thirty  to  one  o'clock,  action  is  somewhat 
less  speedy,  and  as  homicide  cases  usually  require  more  time  for  trial 
than  others,  and  are  tried  seriatim  in  order  of  age,  the  defendants 
may  have  to  wait  a  little  longer  than  in  cases  of  less  gravity.  Even  in 
such  cases  defendants  generally  have  to  be  "forced  to  trial"  against 
their  will. 


THE   TRIAL   OF   FELONIES  153 

where  his  pedigree  is  taken  and  a  day  set  for  his  sen- 
tence, which,  in  the  event  of  his  never  having  been 
convicted  before,  will  probably  be  a  fine  of  twenty- 
five  dollars  or  a  month  in  the  penitentiary. 

*'Call  the  next  case/'  says  the  judge. 

** People  against  Thompson,"  shouts  the  clerk. 
^^ Bring  up  Thompson." 

The  door  in  the  back  of  the  room  opens  and 
** Thompson"  is  *^ brought  up."  He  is  a  good-look- 
ing young  negro,  defended  by  a  member  of  his  own 
race.  The  jury  say  they  have  no  prejudice  against 
negroes  and  are  sworn  without  leaving  the  box.  The 
charge  is  one  of  assault  in  the  first  degree — that  is  to 
say,  with  intent  to  kill.  The  complainant  is  a  flash- 
ily dressed  young  mulatto  woman,  who  asserts  that 
the  defendant  *^done  crack  her  head  wif  an  ice- 
pitcher,"  and  produces  the  fragments  of  pitcher, 
done  up  in  a  newspaper.  She  admits  that  at  the  time 
of  the  unfortunate  occurrence  she  was  living  with 
the  defendant  as  his  wife.  There  are  no  other  wit- 
nesses for  the  People,  and  the  defendant  is  sworn 
without  more  ado.  He  explains  that  the  complain- 
ant accused  him  of  being  too  attentive  to  a  '^yaller 
gal"  on  the  next  street  and  when  he  attempted  to 
go  out  of  the  house  she  attacked  him  with  a  pen- 
knife. In  confirmation  of  this  he  exhibits  a  small 
cicatrix  on  his  wrist.  After  hearing  the  evidence 
the  assistant  announces  to  the  judge  that  the  case 
ought  in  his  opinion  to  have  been  disposed  of  in 
the  police  court  and  that  the  interests  of  justice 
will  be  subserved  if  his  Honor  will  discharge  the 
defendant  on  his  own  recognizance.  This  the  judge 
does  with  an  admonitory  lecture,  and  the  defendant 
and  the  complainant  go  away  together.    "  0.  C,"  the 


154         THE  PEISONER  AT  THE  BAR 

juror,  begins  to  conclude  that  the  assistant  is  a 
pretty  fair  sort  of  a  chap. 

Trial  follows  trial  with  great  rapidity.  Gradu- 
ally the  crowd  in  the  court-room  thins  out.  By  one 
o  ^clock  only  a  dozen  or  fifteen  witnesses  and  specta- 
tors remain,  and  by  half -past  three  the  benches  are 
practically  empty.  "  0.  C."  has  heard  a  dozen  dif- 
ferent complaining  witnesses  tell  the  story  of  how  as 
many  defendants  have  wronged  them.  The  Bowery 
merchant  whose  packing-cases  have  been  broken  into 
has  followed  as  complainant  the  man  who  has  been 
robbed  in  a  saloon ;  the  ^^clothes-line  fighf  has  given 
place  to  the  story  of  the  actual  abduction  of  a 
young  girl  by  a  *  *  cadet ' ' ;  the  landlady  who  has 
received  a  bad  cheque  from  a  lodger  can  hardly  wait 
to  recount  the  history  of  her  misfortunes,  for  the 
man  who  has  lost  a  horse  and  wagon  through  a 
drunken  driver,  whom  he  charges  with  grand 
larceny. 

Generally  the  *' People's  case"  consists  of  the 
complainant's  version  of  what  has  occurred,  some- 
what corroborated  by  another  witness  or  two,  and 
the  officer  who  made  the  arrest.  Then  the  lawyer 
for  the  defendant  takes  his  client  by  the  shoulder 
and  with  a  gruff  **Go  'round  there,  young  man," 
or,  if  he  be  playing  for  sympathy,  a  gentle  *  *  Please 
take  the  stand,  William, ' '  starts  him  upon  that  most 
dangerous  of  all  adventures,  a  journey  to  the  wit- 
ness-chair in  his  own  behalf.  In  two  cases  out  of 
three  the  defendant's  own  testimony,  if  he  is  guilty, 
is  what  convicts  him.  Both  sides  *  *  sum  "  up  in  short, 
disconnected  speeches,  and  the  judge  delivers  a  brief 
charge.  The  jury  file  out  and  another  is  imme- 
diately sworn.    As  the  next  trial  begins  very  likely 


THE    TRIAL   OF   FELONIES  155 

the  door  from  the  ^ '  pen '  *  will  open  and  the  proceed- 
ings be  interrupted  long  enough  to  allow  another 
prisoner  to  tramp  around  the  court-room,  take  his 
stand  at  the  bar,  and  plead  guilty. 

**John  Keenan,  alias  Foxy  Keenan,  alias  Gum- 
Shoe  Jack,  do  you  now  desire  to  withdraw  the  plea 
of  *Not  guilty'  heretofore  entered  by  you,  and  to 
now  plead  guilty  to  grand  larceny  in  the  second 
degree ! " 

The  defendant  acknowledges  with  no  very  amiable 
expression  that  this  is  his  inclination,  and  his  pedi- 
gree, which  is  taken  by  the  clerk  forthwith,  discloses 
that  he  has  served  five  times  in  State's  prison  and 
twice  in  the  penitentiary.  "  0.  C."  looks  at  his  fellow 
jurors  and  whistles  under  his  breath.  That  was  the 
real  thing  and  no  mistake.  Very  likely  the  jury  upon 
which  he  is  now  serving  will  convict,  it  having  thus 
been  brought  to  their  attention  by  a  concrete  illus- 
tration that  all  the  defendants  are  not  innocent  per- 
sons unjustly  accused  of  crime.  "  Remanded,"  says 
the  clerk,  and  Gum-Shoe  Jack  tramps  back  to  the 
little  door  and  the  interrupted  trial  goes  on.  The 
stream  of  complainants,  witnesses  and  defendants 
is  as  varied  as  that  in  Balzac's  "  Comedie  Humaine." 
"  0.  C."  begins  to  take  a  keen  interest  and  now  and 
then  to  put  a  question  himself.  He  has  taken  the  op- 
portunity to  make  the  acquaintance  of  the  assistant 
district  attorney  at  the  noon  hour  and  now  feels  that 
he  is  really  a  part  of  the  machinery  of  justice.* 

*  The  writer's  colleague,  Mr.  Charles  Cooper  Nott,  Jr.,  has  recorded, 
as  follows,  the  actual  proceedings  of  an  ordinary  court  day: 

''Maria  Dzialozindky  takes  the  stand  and  swears  that  after  a  brief 
acquaintance  she  married  (as  she  supposed)  the  defendant  before  a 
rabbi  of  his  choosing;  a  man  in  charge  of  an  officer  is  identified  by 
her  as  the  rabbi;  he  is  brought  over  trom  the  penitentiary  on  Black- 
well's  Island  where  he  is  serving  a  sentence  for  larceny,  l)eing  a  thief 


156         THE  PRISONEE  AT  THE  BAR 

Ordinarily  in  a  full  court  day  there  will  occur 
from  two  to  four  complete  trials,  while  an  equal 
number  of  pleas  may  be  taken.  Sometimes  a  hun- 
dred and  fifty  cases  will  be  got  rid  of  by  trial  or 
plea  in  a  single  term  in  one  part  of  the  General  Ses- 
sions alone.  On  the  other  hand,  if  the  calendar  is 
made  up  of  ^  ^  old-bail  cases,  ^ '  indictments  for  receiv- 
ing stolen  goods,  misappropriation,  and  Italian  or 
Chinese  homicides,  the  office  accounts  itself  lucky  in 
getting  rid  of  half  a  dozen  cases  in  the  month. 
Occasionally,  when  a  brisk,  business-like  judge  is 
sitting,  a  *4iomicide  calendar'*  will  be  disposed  of 
at  the  rate  of  one  a  day,  but  this  is  rare  and  can 
occur  only  when  most  of  the  cases  are  for  man- 
slaughter or  criminal  negligence. 

When  trials  are  rapid  their  speed  always  redounds 
to  the  benefit,  not  of  the  People,  but  of  the  defendant. 


and  not  a  rabbi;  Maria  then  goes  on  to  relate  how  the  defendant 
then  procured  from  her  one  hundred  and  forty-nine  dollars,  and  dis- 
appeared, leaving  her  alone  in  the  Suffolk  Street  tenement  which 
was  to  have  been  their  connubial  bower  of  bliss;  it  further  appears 
that  the  defendant  had  a  wife  living  at  the  time  that  he  went  through 
the  ceremony  of  a  mock  marriage  with  Maria.  Defendant  takes  the 
stand,  modestly  admits  that  he  is  possessed  of  such  unusual  attrac- 
tions that  Maria  persecuted  him  into  this  marriage;  that  she  forced 
the  one  hundred  and  forty-nine  dollars  upon  him,  and  that  he  unfor- 
tunately slumbered  in  a  saloon  and  it  was  stolen  from  his  person. 
The  jury  fail  to  give  credence  to  his  tale,  and  promptly  convict  him. 
The  next  defendant  is  smooth  and  well  dressed,  sl  hanger-on  in  the 
region  known  as  the  Tenderloin.  Testimony  is  given  that  he  and 
another  did  take  and  carry  away  and  sell  certain  typewriting  machines 
from  an  office  in  Thirty-fourth  Street.  Defendant  with  an  engaging 
smile  tells  how  his  companion  had  just  been  discharged  from  the 
office  in  question,  and  had  enlisted  his  (defendant's)  aid  to  remove  the 
machines,  which  he  informed  defendant  were  his  own,  and  how  shocked 
he  was  later  to  learn  that  this  wicked  companion  had  no  right  or  title 
to  them.  His  smile  is  so  engaging,  and  his  looks  so  respectable,  that 
the  jury  acquit  him,  and  are  somewhat  chagrined  when  the  judge, 
in  discharging  him,  states  that  in  the  court's  opinion  he  is  a  smooth 
and  plausible  thief  and  guilty  beyond  a  doubt — which  is  the  fact,  as 
previous  to  the  trial  he  had  offered  to  plead  guilty  to  a  lower  degree 
of  the  crime  charged.  Next  comes  a  stalwart  Irishman  w.:o  describes 
with  much  feeling  how  the  defendant  (unfortunately  a  much  smaller 


THE    TRIAL   OF   FELONIES  157 

Such  a  performance  in  a  court  of  justice  as  the  fol- 
lowing, recounted  by  Lord  Brampton,  could  not  take 
place  to-day.  It  is  worth  reproduction  as  marking 
the  progress  of  criminal  procedure : 

The  first  thing  that  struck  me  in  the  after-dinner  trials 
was  the  extreme  rapidity  with  which  the  proceedings  were 
conducted.  As  judges  and  counsel  were  exhilarated,  the 
business  was  proportionately  accelerated.  But  of  all  the  men 
I  had  the  pleasure  of  meeting  on  these  occasions,  the  one 
who  gave  me  the  best  idea  of  rapidity  in  an  after-dinner  case 
was  Muirhouse. 

Let  me  illustrate  it  by  a  trial  which  I  heard:  Jones  was 
the  name  of  the  prisoner.  His  offence  was  that  of  picking 
pockets,  entailing  of  course  a  punishment  corresponding 
in  severity  with  the  barbarity  of  the  times.  It  was  not  a 
plea  of  '^  Guilty,' '  when  perhaps  a  little  more  inquiry  might 
have  been  necessary;  it  was  a  case  in  which  the  prisoner 
solemnly  declared  he  was  ''Not  guilty/'  and  therefore  had 
a  right  to  be  tried. 

The  accused  having  "held  up  his  hand,"  and  the  jury 


man),  without  any  provocation  whatever,  viciously  assaulted  him  in 
the  hallway  of  the  West  Side  tenement -house  where  they  both  lived, 
and  cut  him  in  various  vital  parts  with  a  pocket  knife.  Defendant 
(bandaged  to  no  less  a  degree  than  complainant)  describes  how  he  had 
"an  argument"  (a  term  embracing  any  affray  ending  in  anything 
short  of  murder  in  the  first  degree)  with  complainant  and  his  brother 
over  a  game  of  cards,  whereupon  they  followed  him  to  the  hallway, 
threw  him  down  and  kicked  him,  and  then  struck  at  them  with  a 
large  key.  His  talk  sounding  reasonable  and  being  corroborated  by 
several  neighbors,  defendant  is  acquitted.  Lastly,  an  unsuspecting 
passenger  and  an  alert  trolley-car  conductor  tell  how  defendant,  a 
shifty-looking  young  gentleman,  while  sitting  next  to  the  unsuspect- 
ing passenger,  kept  with  one  hand  a  newspaper  shoved  under  the 
latter's  chin,  while  with  the  other  he  abstracted  a  fine  diamond  scarf 
pin  adorning  his  cravat.  When  their  tale  is  completed,  the  defendant 
and  his  counsel  put  their  respective  heads  together,  and  counsel  then 
announces  that  his  client,  the  sole  support  of  a  widowed  mother,  did, 
in  a  moment  of  temptation  induced  by  filial  anxiety,  endeavor  to 
acquire  this  pin,  and  he  therefore  desires  to  throw  himself  upon  the 
mercy  of  the  court  and  plead  guilty,  which  he  does.  It  appears, 
however  (of  course  to  counsel's  astonishment),  that  his  portrait  has 
for  several  years  ornamented  the  Rogues'  Gallery,  and  that  his  record 
as  a  son  is  not  all  that  it  might  be,  whereupon  he  is  sentenced  upon 
the  spot,  and  court  adjourns.  This  is  the  summary  of  the  actual 
record  of  a  court  day  presenting  no  unusual  features" — "  In  the  District 
Attorney's  Office"  Atlantic  Monthly  for  April,  1905. 


158         THE  PRISONER  AT  THE  BAR 

having  solemnly  sworn  "to  hearken  to  the  evidence,"  etc., 
the  witness  for  the  prosecution  climbs  into  the  box,  which  was 
like  a  pulpit,  and  before  he  has  time  to  look  around  and  see 
where  the  voice  comes  from,  he  is  examined  by  the  prosecut- 
ing counsel. 

''  I  think  you  were  walking  up  Ludgate  Hill  on  Thursday 
25th  about  half-past  two  in  the  afternoon  and  suddenly  felt 
a  tug  at  your  pocket  and  missed  your  handkerchief,  which 
the  constable  now  produces.     Is  that  it?" 
.  "Yes,  sir." 

"I  suppose  you  have  nothing  to  ask  him?"  says  the 
judge.     "  Next  witness." 

Constable  stands  up. 

"Were  you  following  the  prosecutor  on  the  occasion  when 
he  was  robbed  on  Ludgate  Hill,  and  did  you  see  the  prisoner 
put  his  hand  into  the  prosecutor's  pocket  and  take  the 
handkerchief  out  of  it?" 

"Yes,  sir." 

Judge  to  the  prisoner:  "Nothing  to  say,  I  suppose?" 

Then  to  the  jury:  "Gentlemen,  I  suppose  you  have  no 
doubt?     I  have  none." 

Jury:  "  Guilty,  my  lord,"  as  though  to  oblige  his  lordship. 

Judge  to  prisoner:  "Jones,  we  have  met  before — we  shall 
not  meet  again  for  some  time — seven  years'  transportation. 
Next  case." 

Time:   two  minutes  and  fifty-three  seconds. 

But  to  return  to  our  juror.  What  strikes  "  0.  C," 
who  has  now  become  entirely  disabused  of  his  pre- 
vious ideas  of  what  criminal  trials  are  like,  is  the 
fairness  with  which  those  trials  are  conducted  in 
the  General  Sessions  and  the  fact  that  the  inter- 
ests of  the  accused  are  safeguarded  in  every  pos- 
sible way.  Plenty  of  time  is  taken  to  try  out 
even  a  pickpocket  case  or  a  street-corner  brawl. 
The  judge  always  covers  the  law  fully  and  accen- 
tuates the  necessity  of  giving  every  reasonable 
doubt  to  the  defendant.  In  his  heart  "  0.  C."  be- 
gins to  have  a  slight  feeling  that  the  devil  is 
getting  a  little  more  than  his   due.    He  has   ac- 


THE   TRIAL   OF   FELONIES  159 

quitted  so  many  of  the  persons  who  have  been  tried 
that  when  he  now  sees  a  head  he  is  not  at  all 
unwilling  to  hit  it.  He  is  fast  reaching  that  state 
of  mind  which  the  prosecutor  has  anticipated  when 
he  has  told  his  chief  that  in  a  few  days  he  will  have 
the  jury  ** knocked  into  shape/*  in  other  words,  he 
no  longer  believes  every  hard-luck  story  that  he 
hears,  he  knows  that  certain  criminal  attorneys  are 
capable  of  almost  any  kind  of  misrepresentation,  he 
realizes  that  practically  every  defendant  has  already 
had  a  pretty  exhaustive  trial  in  the  police  court 
before  indictment,  he  is  quite  as  anxious  to  see  the 
guilty  convicted  as  he  is  to  see  the  innocent  ac- 
quitted, and  he  has  been  properly  disgusted  with 
the  attitude  and  actions  of  certain  of  his  colleagues 
in  the  jury-room  whom  he  regards  quite  properly 
as  anarchists  or  idiots.  The  district  attorney  at  the 
end  of  a  week  has  found  out  who  some  of  these  are. 
They  have  been  '  ^  excused ' '  for  the  remainder  of  the 
term,  and  he  can  rely  pretty  safely  on  the  others 
rendering  a  fair  verdict  in  any  important  case  which 
he  now  desires  to  move  before  them. 

What  naturally  interests  "  0.  C."  and  his  fellow 
jurors  most  of  all  is  the  defendant's  own  story  of 
how  he  came  to  be  involved  in  the  transaction  out 
of  which  the  charge  against  him  arises.  For  the 
first  few  days  he  very  probably  gives  such  explana- 
tions rather  more  credit  than  they  deserve,  for  he 
is  sympathetically  inclined  to  believe  that  the  pris- 
oner is  more  likely  to  be  the  victim  of  circumstances 
than  guilty  of  an  act  of  moral  turpitude.  The 
eager  attitude  of  some  of  the  complainants  likewise 
gives  him  an  excuse  for  believing  them  to  be  actu- 
ated by  more  than  a  mere  desire  to  see  justice  done 


160         THE  PEISONER  AT  THE  BAE 

and  to  have  the  truth  prevail.  He  is  inclined  to  look 
for  hidden  motives  for  every  prosecution.  This  grad- 
ually wears  off  and  his  attention  becomes  centred  on 
the  defendant  himself.  Will  he  put  in  a  defence? 
Will  he  testify  in  his  own  behalf!  What  will  he  say  f 
Little  by  little  "  0.  C."  gets  to  inventing  defences  to 
fit  the  facts  established  against  the  prisoner  by  the 
people's  case.  Meantime  he  is  learning  a  little  law. 
That  "  the  people  must  prove  the  defendant's  guilt 
beyond  every  reasonable  doubt,"  and  "that  no  un- 
favorable inference  must  be  drawn  as  against  the  de- 
fendant from  his  failure  to  testify  in  his  own  behalf." 
"  0.  C."  has  some  difficulty  with  the  "  reasonable 
doubt."  Perhaps  he  says  to  himself,  "  I  am  a  reason- 
able man, — hence  any  doubt  I  have  must  be  reason- 
able." However,  the  judge's  reiteration  that  not 
every  doubt  is  a  reasonable  one  and  that  the  words 
do  not  mean  "  a  mere  guess  or  conjecture  that  the  de- 
fendant may,  after  all,  be  innocent,  but  a  substantial 
doubt  arising  out  of  the  evidence  in  the  case,  for 
which  a  reason  can  be  given,"  and  of  such  a  character 
as  would  influence  him  in  the  important  affairs  of  his 
daily  life,  eventually  clears  his  mind  on  this  some- 
what abstruse  psychological  problem,  and  he  trans- 
lates "  beyond  any  reasonable  doubt "  into  the  more 
lucid  and  comprehensive  "  moral  certainty  "  of  ordi- 
nary existence.*  But  that  he  shall  not  permit  himself 
to  be  prejudiced  against  a  defendant  by  the  latter's 
refusal  to  testify  is  a  much  more  difficult  matter.  He 
knows  it  to  be  the  law,  and  he  tries  hard  to  obey  it, 
but  in  a  majority  of  cases  he  cannot  escape  the  sub- 
conscious deduction  that  if  the  defendant  were  inno- 
cent he  would  not  hesitate  to  offer  an  explanation. 

*  Cf.  "Reform  in  Criminal  Procedure,"  by  Everet  P.  Wheeler,  4  Co- 
lumbia Law  Rev.  356. 


THE  TEIAL  OF  FELONIES  161 

As  time  goes  on  and  he  gains  in  experience  it  becomes 
even  harder  to  follow  the  instructions  of  the  judge  in 
this  respect.  He  discovers  that  the  district  attorney 
cannot  prove  the  prison  record  or  bad  character  of 
the  defendant  unless  the  latter  subjects  himself  to 
cross-examination  by  taking  the  witness-stand,  and 
hence  is  likely  to  suspect  that  any  defendant  who 
does  not  testify  is  an  ex-convict.  Three  jurors  out  of 
five  will  convict  any  man  who  is  unwilling  to  offer  an 
explanation  of  the  charge  against  him.  How  they 
reconcile  this  with  their  oath  it  would  be  hard  to  un- 
derstand, if  they  were  accustomed  to  obey  it  literally 
in  other  respects.  The  writer  has  heard  more  than 
one  talesman  say,  in  discussing  a  verdict,  "  Of  course 
we  couldn't  take  it  against  him,  but  we  knew  he  was 
guilty  because  he  was  afraid  to  testify." 

As  the  reader  is  doubtless  aware,  under  the  com- 
mon law  no  defendant  in  either  a  civil  suit  or  crim- 
inal prosecution  could  testify  in  his  own  behalf.  He 
was  regarded  as  a  party  in  interest  whose  bias 
must  necessarily  render  his  evidence  of  question- 
able, if  of  any,  value.  This  doctrine,  along  with 
many  others,  our  fathers  adopted  on  their  severance 
from  England,  and  it  continued  to  be  the  law  in 
New  York  for  a  long  time, — in  civil  cases  until  1849, 
and  in  criminal  until  1869.  Then,  ostensibly  for  the 
sake  of  the  defendant  and  for  the  protection  of  the 
innocent,  the  rule  was  abolished.  That  the  change 
from  the  common  law  was  not  generally  approved 
either  by  the  bench  or  bar  of  New  York  is  clear 
from  the  opinion  of  the  Court  of  Appeals  in  one 
of  the  earliest  cases  which  arose  under  the  new 
practice.*    The  court  expressed  the  opinion  that 

*  Ruloff  vs.  The  People.  45  N.  Y.  221. 


162         THE  PEISONER  AT  THE  BAR 

the  change  would  redound  to  the  benefit  of  the 
glib,  quick-witted  and  hardened  criminal  who  could 
invent  a  plausible  defence,  and  result  in  the 
confusion  of  the  innocent  man  unjustly  accused 
of  crime  who  might  from  stupidity  or  timidity 
involve  himself  in  apparent  contradiction;  to  say 
nothing  of  the  fact  that  if  the  defendant  did  not 
take  the  stand  the  jury,  however  much  they  were  in- 
structed to  the  contrary,  would  inevitably  draw  an 
unfavorable  conclusion  from  his  failure  to  deny  his 
guilt. 

Now  to  any  fair-minded  American  it  must  seem 
almost  rudimentary  justice  that  the  accused  should 
have  a  chance  to  tell  his  own  story.  That  in  itself 
is  a  sufficient  reason  for  the  rule.  Just  why,  theo- 
retically, if  a  defendant  does  not  see  fit  to  give  an 
explanation  and  subject  himself  to  cross-examina- 
tion, the  jury  should  not  be  permitted  to  draw  an 
unfavorable  inference  is  not  so  clear. 

Experience  has  demonstrated  that  an  innocent 
man  need  have  no  fear  about  taking  the  stand. 
Jurors  sympathize  with  a  defendant  who  is  sub- 
jected to  a  withering  fire  of  questions,  and  do  not 
expect  him  to  be  able  to  give  a  lucid  account  of 
himself  since  the  day  of  his  birth,  or  to  explain 
without  the  minutest  contradiction  every  detail  in 
the  evidence  against  him.  But  they  do  want  him  to 
deny  his  guilt  and  to  have  an  opportunity  to  **size 
him  up."  On  the  other  hand,  the  slightest  word  of 
explanation  may  suffice  to  change  the  whole  com- 
plexion of  a  case.*    In  the  old  days  the  guiltiest  of 

*  Mr.  Nott  cites  the  following  case: 

"The  complainant,  A,  a  well-dressed  bartender,  testified  that  he 
had  known  the  defendant,  B,  for  some  time;  that  on  the  nie^ht  in  ques- 
tion B  came  to  A's  rooms,  and  shortly  after  B's  departure,  A  found  that 


THE   TEIAL   OF   FELONIES  163 

criminals  could,  almost  with  impunity,  sliield  him- 
self behind  his  lawyer's  eloquent  assertion  that  his 
client  had  a  ** perfect  defence,''  but  that  the  law 
^*had  sealed  his  lips."  To-day  in  the  vast  majority 
of  cases  the  prisoner  who  does  not  take  the  stand 
is  doomed.  Out  of  three  hundred  defendants  tried 
by  the  writer's  associate,  Mr.  C.  C.  Nott,  twenty- 
three  failed  to  take  the  stand  in  cases  submitted  to 
the  jury.  Of  these  twenty-one  were  convicted,  one 
was  acquitted,  and  as  to  one  the  jury  disagreed. 
Had  these  men  been  prevented  by  law  from  testify- 
ing in  their  own  behalf,  the  ratio  would  have  been 
very  different. 

Thus  a  rule  originally  intended  to  benefit  the  in- 
nocent defendant  by  permitting  him  to  offer  his 
explanation  of  the  charge  against  him  has  practi- 
cally resulted  in  compelling  all  defendants,  guilty  or 
innocent  alike,  to  testify.  It  goes  without  saying 
that  this  has  resulted  in  a  considerable  benefit  to 
the  community.    Its  only  disadvantage,  and  this  is 

his  watch  was  missing;  the  watch  had  been  in  the  pocket  of  A's  vest, 
which  A  had  left  hanging  on  a  chair,  and  A  had  stepped  out  of  tne  room 
for  ten  minutes,  leaving  B  alone  there.  B  afterwards  admitted  to  A 
that  he  had  "hocked"  the  watch.  Of  course  this  testimony,  if  be- 
lieved, made  a  case  against  B,  and  it  is  difficult  now  to  realize  now  any 
one  could  ever  have  beheved  that  the  chance  of  explaining  or  contra- 
dicting it  could  be  more  dangerous  to  B  than  the  certainty  of  having 
A's  testimony  go  to  the  jury  uncontradicted.  B  took  the  stand  and 
testified  that  he  was  getting  a  good  salary  as  manager  of  an  "intelli- 
gence office";  had  never  been  even  arrested  before;  that  A  had  ob- 
tained a  loan  of  fifteen  dollars  from  him  and  had  left  the  watch  with 
him  on  the  understanding  that  B  was  to  pawn  it  for  fifteen  dollars  and 
give  A  the  ticket ;  B  did  pawn  it  in  his  owti  name  and  was  shortly 
thereafter  arrested.  This  case  is  a  fair  illustration  of  a  puzzling  class. 
On  the  one  hand,  no  motive  or  reason  was  shown  why  A  should  cause 
the  arrest  of  his  friend  on  a  false  charge  (unless  that  of  getting  the 
watch  back  from  the  pawnbroker  without  payment  of  the  fifteen  dollars, 
on  the  ground  that  it  had  been  stolen,  is  an  adequate  one).  Upon  the 
other  hand,  B's  character  and  position  in  life  seemed  to  make  it  unlikely 
that  he  would  commit  such  a  theft,  and  his  act  in  pawning  the  watch 
under  his  true  name  gave  color  to  his  story.  The  jurv  acquitted,  and 
who  can  say  that  there  was  not  at  least  a  reasonable  doubt?" 


164         THE  PEISONER  AT  THE  BAR 

probably  more  theoretical  than  practical,  is  that  ex- 
convicts  on  trial  can  no  longer  successfully  conceal 
their  pasts.  If  they  do  not  testify  they  will  probably 
pay  the  usual  penalty,  and  if  they  do  testify  they 
are  more  than  likely  to  be  convicted  *^on  their  rec- 
ords.'^  Clever  criminals  often  seek  to  avoid  this 
dilemma  by  declining  the  services  of  counsel  and 
conducting  their  own  cases,  thus  rendering  it  impos- 
sible for  themselves  to  take  the  stand,  for  in  such 
an  event  there  would  be  no  lawyer  to  examine  them. 
This  ruse  is  well  calculated  to  deceive  the  ordinary 
juryman. 

The  jury  are  also  far  less  inclined  to  draw  an 
unfavorable  inference  from  a  defendant's  failure  to 
testify  if,  on  the  conclusion  of  the  evidence  of  the 
prosecution,  he  merely  ^* rests  on  the  people's  case" 
and  puts  in  no  defence  at  all,  than  if  he  puts  in  only 
a  partial  defence.  They  readily  appreciate  that  his 
counsel  may  honestly  believe  that  as  matter  of  law 
no  case  has  been  made  out  against  him,  and  they 
bend  their  energies  to  the  determination  of  the  sim- 
ple and  unobstructed  issue  of  whether  the  uncontra- 
dicted evidence  of  the  prosecution  has  of  itself  estab- 
lished the  guilt  of  the  prisoner  beyond  a  reasonable 
doubt.  If  he  puts  in  a  defence  and  calls  witnesses 
to  contradict  those  of  the  people,  the  jury  are  apt  to 
concentrate  their  attention  upon  the  question  of  the 
relative  truthfulness  of  the  witnesses  on  either  side. 
Juries,  quite  naturally,  are  quick  to  infer  guilt  from 
any  attempt  at  deception  on  the  part  of  the  defence, 
and  habitually  visit  the  sins  of  his  witness  upon  the 
prisoner.  Every  criminal  lawyer  has  had  the  un- 
pleasant experience  of  seeing  his  client  convicted 
merely  because  the  jury  have  caught  one  of  the  wit- 


THE   TRIAL   OF   FELONIES  165 

nesses  for  the  defence  lying  on  an  immaterial  point. 
Whether  the  jury  hear  one  or  both  sides  of  a 
case,  they  inevitably  labor  under  the  disadvantage 
of  never  being  able  to  pierce  the  screen  which  the 
law  has  hung  between  them  and  the  truth  in  every 
case.  Many  a  jury  is  struggling  manfully  with  the 
question  of  the  defendant's  guilt  or  innocence, 
while  the  latter  sits  in  the  pen  chewing  the  cud  of 
narcotic  contentment  and  wondering  whether  the 
yarn  he  ** framed''  for  them  will  be  believed.  He 
has  figured  out  what  he  is  likely  to  get,  knowing  that 
even  if  he  were  found  guilty  the  judge  would  proba- 
bly not  **give"  him  **more  than  Elmira,"  and  has 
resolved  to  *  *  take  a  chance. ' '  As  the  Elmira  sentence 
is  indeterminate,  the  defendant  has  nothing  to  gain 
by  pleading.  Once  there,  he  will  be  released  in  four- 
teen months  if  his  conduct  appears  to  warrant  it. 
The  only  real  *^ chance"  that  he  takes,  is,  that  the 
judge  may  send  him  to  State 's  prison,  but  he  usually 
has  made  a  study  of  the  judge's  character  and  past 
performances.  Similarly  he  may  have  offered  to 
plead  to  a  lower  degree  of  the  same  offence  and  his 
offer  may  have  been  refused,  yet  the  matter  is  confi- 
dential and  the  case  has  to  be  tried  by  the  district 
attorney  as  though  he  had  no  knowledge  of  the  de- 
fendant's guilt.  So  the  jury  retire  and  frequently 
end  their  deliberations  by  acquitting  the  defendant, 
who  leaves  the  court-room  triumphantly  to  the 
great  chagrin  of  the  prosecutor.  The  jury,  on  the 
other  hand,  are  filled  with  complacent  satisfaction 
at  having  restored  to  liberty  a  man  unjustly  accused 
of  crime.  But  these  trifling  considerations  are  as 
nothing  when  compared  with  the  limitations  which 
the  laws  of  evidence  and  procedure  place  upon  the 


166         THE  PEISONER  AT  THE  BAR 

presentation  of  what  is  ofttimes  a  perfectly  plain 
case.* 

The  prosecutor  who  has  thoroughly  investigated 
a  case  has  a  knowledge  of  its  real  merits  which  can 
never  be  brought  to  the  minds  of  the  jury.  There 
is  much  evidence,  not  technically  admissible,  which 
properly  should  be  considered  by  him  in  determin- 
ing his  official  action,  and  there  is  usually  an  equal 
amount  of  evidence,  the  competency  of  which  will 
depend  on  the  course  of  the  trial.  He  occupies  a 
delicate  and  frequently  a  very  difficult  position, 
since  he  must  prosecute  the  case  without  reference 
to  facts  which  might  conclusively  prove  the  defend- 
ant guilty,  could  they  be  introduced  in  evidence. 
The  real  character  of  the  accused  can  almost  never 
be  demonstrated,  for  unless  he  takes  the  stand  in 
his  own  behalf  his  ^^ record"  is  inadmissible,  and 
even  when  he  does  take  the  stand,  he  can  deny  with 

♦Mr.  Nott  gives  the  following  illustration  from  an  actual  trial: 
"Take,  for  example,  a  certain  case  tried  in  the  Criminal  Branch  of 
the  Supreme  Court  in  the  January  term  of  1902.  The  jury  saw  the 
defendant,  a  stalwart,  open-faced  laboring  man  of  nearly  sixty  years, 
on  trial  for  murder  in  the  first  degree;  they  heard  a  bartender  and 
a  smooth-shaven,  bullet-headed  witness  describe  how  the  defendant 
in  the  saloon  became  involved  in  a  dispute  with  the  deceased,  caused 
by  the  defendant's  bad  taste  in  reminding  him  that  he  had  done  time 
for  killing  his  own  father;  and  they  heard  him  of  the  bullet-head 
admit  on  cross-examination  that  a  scar  adorning  his  neck  had  been 
inflicted  by  the  deceased  some  two  years  before;  they  heard  the  two 
witnesses  describe  how  the  deceased,  left,  breathing  threatenings  and 
slaughter,  and  how  a  few  minutes  later  the  defendant,  in  the  room 
back  of  the  saloon,  was  approaching  the  rear  door,  cutting  a  plug 
of  tobacco  with  his  knife,  which  he  had  providentially  drawn  for  that 
purpose,  when  the  deceased  leaped  upon  him  from  the  door  and  tried 
to  stab  him,  whereupon  a  fight  ensued,  in  which  the  defendant  was 
cut,  and  after  which  the  deceased  left,  followed  a  few  minutes  later  by 
the  defendant  and  the  bullet-headed,  who  saw  naught  further  of  him. 
To  mar  the  symmetry  of  this  tale  of  self-defence  (proved  by  the  prose- 
cution's own  case),  but  two  jarring  facts  appeared — first,  the  saloon 
proper  (not  the  rear  room)  was  found  soaked  in  blood,  and,  second, 
the  deceased  was  found  shortly  after  the  defendant's  departure  at 
three  a.m.  lying  on  the  sidewalk  in  plain  sight  of  the  rear  door,  with 
his  throat  cut  from  ear  to  ear.     No  evidence  was  put  in  for  the  defence, 


THE   TRIAL   OF   FELONIES  167 

impunity  any  allegation  as  to  his  past  offences  and 
conduct,  since  the  law  does  not  permit  the  prosecutor 
to  disprove  such  denials  unless  they  relate  to  actual 
convictions  for  crime.  Similarly  the  excellent  char- 
acter of  the  complainant  and  his  witnesses  may 
not  be  shown,  unless  the  defendant  himself  directly 
attacks  it,  so  that  it  is  probable  that  throughout  the 
case  the  injured  party  and  the  wrong-doer  appear 
to  the  jury  to  be  of  equal  credibility.  The  district 
attorney  is  a  *' quasi- judicial' ^  oflScer,  who  must  be 
at  one  and  the  same  time  the  friend  and  right  arm  of 
the  court  and  the  advocate  of  the  public  right.  His 
official  position  gives  him  an  influence  with  the  jury 
which  honor  forbids  him  to  abuse,  and  demands  an 
impartial  consideration  of  the  evidence  and  a  dig- 
nified method  of  conducting  the  case,  irrespective 

the  defendant  modestly  refrained  from  taking  the  stand,  and  of  course 
an  acquittal  was  inevitable, 

"From  behisid  the  scenes,  however,  the  facts  assumed  a  different 
aspect.  The  frank-faced  defendant  was  one  'Red,'  who  had  served 
time  for  robbery  and  other  offences;  the  bullet-head  surmounted 
shoulders  upon  which  rested  a  heavy  load  of  crime  and  violence,  their 
owner  having  served  the  State  several  times  and  been  implicated  in 
numerous  crimes,  including  murder;  the  bartender  would  have  con- 
sidered it  quite  as  safe,  and  far  more  comfortable,  to  put  a  bullet 
through  his  head  than  to  testify  against  this  choice  pair;  while  it  was 
true  that  the  deceased  had  killed  his  own  father,  the  act  was  per- 
formed while  parent  and  son  were  in  a  drunken  fight,  by  striking  the 
old  man  on  the  head  with  a  water  pitcher,  and  had  occasioned  great 
mortification  to  the  son  when  he  became  sober;  and  it  was  true  that 
defendant  and  the  bullet-headed  were  both  bitter  enemies  of  the 
deceased.  On  this  statement  of  facts,  there  is  little  doubt  that  the 
deceased  was  murdered  in  the  saloon  where  the  blood  was  found, 
and  his  body  thrown  out  on  to  the  sidewalk,  and  the  story  arranged, 
the  defendant  shouldering  the  quarrel  because  he  had  received  a  cut 
in  the  course  of  the  fight.  As  the  defendant  did  not  take  the  stand, 
his  record  and  character  could  not  be  shown;  as  the  State  was  com- 
pelled to  call  the  bartender  and  the  other  witness  (they  being  the 
sole  witnesses  to  the  occurrence),  it  could  not  impeach  their  veracity 
nor  attack  their  character.  To  the  prosecuting  officer,  therefore, 
was  presented  the  choice  of  recommending  the  'turning  out'  of  a 
desperate  criminal  without  a  trial,  or  of  putting  in  what  facts  the 
law  permitted  to  be  shown,  and  leaving  the  jury  to  acquit,  while  mar- 
velling that  such  a  weak  case  should  be  presented  to  them." 


168         THE  PRISONER  AT  THE  BAR 

of  the  tactics  of  the  defence.  He  represents  not  only 
the  public,  but  the  defendant,  who  is  one  of  the  pub- 
lic. He  should  be  glad  to  welcome  at  any  stage  of 
the  proceedings  credible  evidence  tending  to  estab- 
lish the  innocence  of  the  accused,  and  if  it  convinces 
him  that  the  defendant  is  not  guilty,  he  should,  even 
in  the  midst  of  a  trial,  arise  and  move  that  the  jury 
be  discharged  and  the  prisoner  set  free.  But  this  is 
by  no  means  inconsistent  with  a  vigorous  insistence 
upon  the  people 's  rights,  nor  does  it  require  that  the 
prosecutor  should  refrain  from  using  the  advocate's 
customary  weapons  of  attack  and  defence.  While 
he  is  cross-examining  the  witnesses  for  the  defence 
and  arguing  to  the  jury,  he  is  for  the  time  being  the 
lawyer  for  the  people,  and  the  appellate  courts  have 
said  that  it  would  be  manifestly  unfair  not  to  extend 
to  him  in  summing  up  the  case  an  equal  latitude  of 
expression  and  scope  of  argument  with  counsel  for 
the  defendant. 

It  is  the  consciousness  that  he  is  indeed  sore  let 
and  hindered  in  really  laying  the  truth  before  the 
jury  that  makes  the  accusation  of  ** unfairness''  so 
bitter  to  a  prosecutor,  and  it  is  the  cause  of  what- 
ever "  overzealousness  "  it  is  often  popular  to  ascribe 
to  the  district  attorney's  office.  One  would  think, 
to  read  the  communications  in  the  evening  papers 
during  a  recent  trial,  that  the  community  had  no 
privileges  at  all.  A  prosecutor  frequently  reaches 
that  conclusion  from  experience.  The  writer  is  not 
aware  that  the  constitutional  guarantees  which  pro- 
tect the  liberty  of  the  individual  were  intended  to 
deprive  the  public  of  an  advocate.  In  the  nature  of 
things,  if  justice  is  to  be  done,  the  People  should  be 
entitled  to  the  same  rights  as  the  individual.    If  we 


THE    TRIAL   OF   FELONIES  169 

are  to  have  respect  for  law,  the  law  must  be  deserv- 
ing of  respect,  and  law  which  makes  rather  for  the 
acquittal  than  for  the  conviction  of  the  guilty  is  not 
of  that  sort. 

But  with  a  trained  panel  of  jurors,  at  the  end  of 
the  second  week  of  the  term,  the  chaff  having  been 
separated  from  the  wheat,  the  prosecution  may  rea- 
sonably expect  to  see  the  mill  of  justice  grinding 
smoothly  and  reasonably  fine,  the  jury  at  home  in 
the  court-room,  familiar  with  their  duties,  and  ap- 
preciative of  the  fact  that  all  the  assistant  is  trying 
to  accomplish  is  the  disposal  of  as  many  cases  as 
possible  consistent  with  fair  trials  and  just  verdicts. 
By  the  middle  of  the  term  he  must  be  a  very  indiffer- 
ent sort  of  fellow  if  he  has  not  made  friends  of  the 
jury;  and  assuming  that  he  has  done  his  work  dis- 
interestedly and  in  a  business-like  fashion,  he  will 
find  that  he  has  now  the  good- will  and  respect  of  the 
entire  panel, — a  regard  which  may  well  stand  him  in 
good  stead  later  on  in  his  career.  This  is  the  pros- 
ecutor's reward, — to  try  cases  before  a  body  of  men 
who  know  that  he  is  anxious  to  do  the  right  thing, 
ready  to  welcome  any  evidence  that  really  tends  to 
establish  the  innocence  of  the  accused,  but  insistent 
that  no  guilty  man  shall  go  free  unless  his  act  is  first 
stamped  as  wrong  by  a  conscientious  verdict  on  the 
part  of  the  jury. 

Yet,  as  the  writer  has  already  stated,  when  the 
jury  disband  at  the  conclusion  of  the  term  with  the 
thanks  of  the  court,  they  have  seen  few  professional 
crimnals,  save  for  a  fleeting  glance  as  one  or  two 
are  led  to  the  bar  to  admit  their  guilt.  One  exception 
readily  suggests  itself, — ^namely,  the  prosperous 
swindler  who,  by  means  of  the  "wire-tapping,'' 


170        THE  PEISONEE  AT  THE  BAR 

**sick  engineer'*  or  other  similar  device,  has  parted 
some  gullible  person  from  his  savings.  Yet  these 
gentry  always  save  plenty  of  money  with  which  to 
engage  able  counsel  and  are  only  forced  to  trial 
after  they  have  exhausted  every  means  of  delay 
known  to  the  law.  They  never  plead  guilty,  but 
fight  until  the  last  gun  is  fired,  believing  that  as  they 
have  escaped  punishment  in  the  past,  so  they  will  in 
the  future.  Their  records  rarely  make  it  possible 
for  them  to  take  the  stand  in  their  own  behalf,  and 
if  the  case  goes  to  the  jury  at  all  they  are  immedi- 
ately convicted.  Almost  every  panel  has  the  oppor- 
tunity to  hear  at  least  one  ** sucker''  tell  his  story 
and  to  render  a  speedy  verdict  in  his  favor.  It 
needs  little  explanation  from  a  prosecutor  to  con- 
vince the  twelve  hard-working  tradesmen  before 
him  that  the  defendants  in  this  class  of  cases  are  the 
**real"  criminals, — systematic  enemies  of  society. 

The  great  bulk  of  cases,  that  is  to  say,  nearly 
seventy-five  per  cent,  are  disposed  of  by  plea, 
by  direction  of  the  court,  or '  *  recommendation, ' '  that 
is  to  say,  on  the  written  application  of  the  district 
attorney  that  the  defendant's  bail  be  discharged. 
Hundreds  of  cases  are  thus  ** turned  out"  every 
year,  and  for  the  most  part  represent  those  in- 
stances where  the  magistrate  and  grand  jury  have 
not  had  either  the  time  or  the  inclination  to  assume 
the  responsibility  of  discharging  the  defendants, 
preferring  to  put  the  question  **up"  to  the  district 
attorney  or  a  petit  jury.  These  recommendations 
are  made  on  numberless  grounds,  the  principal  be- 
ing (1)  that  it  is  clearly  apparent  that  a  reasonable 
doubt  exists  on  the  evidence ;  in  other  words,  that  as 
a  matter  of  law  the  case  should  not  be  submitted  to 


THE   TRIAL   OF   FELONIES 


171 


a  jury;  (2)  that  the  People's  witnesses  have  disap- 
peared or  left  the  jurisdiction;  (3)  that  the  case 
has  once  been  tried  with  the  jury  standing  almost 
unanimously  for  acquittal;  (4)  that  owing  to  the 
peculiar  circumstances  in  the  case  it  is  quite  unrea- 
sonable to  suppose  that  any  jury  would  convict, — 
such  as  where  an  entirely  respectable  young  woman 
being  out  of  work  has,  in  a  fit  of  despair,  attempted 
her  own  life.*  Two  or  three  cases  are  disposed  of  in 
this  manner  in  each  part  of  the  Sessions  almost  every 
calendar  day  in  the  year. 

The  defendants  who  plead  guilty  are  professional 
criminals,  ex-convicts,  and  prisoners  whose  guilt  is 
so  overwhelmingly  clear  that  they  have  no  hope  of 
getting  even  a  disagreement. 

Thus  most  of  the  cases  tried  are  neither  **dead 
open  and  shut,"  as  the  saying  is,  nor  exception- 
ally weak.  They  usually  present  some  question  of 
aoubt, — usually  only  a  conjectural  one,  however,  or 
at  least  admit  of  a  more  or  less  logical  argument 
for  an  acquittal  on  the  part  of  the  defence. 

In  trivial  cases  the  jury  are  inclined  to  take  the 

*  The  number  of  these  cases  is  one  of  the  saddest  commentaries  upon 
the  conditions  of  life  in  a  great  city.  Upon  this  charge  during  the  year 
1905, 268  males  and  114  females,  a  total  of  382,  were  arrested.  Thirteen 
males  and  no  females  were  held  for  trial  and  the  others  were  discharged. 

Comparison  with  Previous  Years 


Year 

Number  Arraigned 

Number  Held  for  Trial 

Males 

Females 

Total 

Males 

Females 

Total 

1896 

1897 

1898 

1899 

1900 

1901 

1902 

1903 

1904 

1905 

1906 

1907 

147 
228 
202 
257 
251 
244 
244 
374 
234 
268 
269 
258 

72 
130 
159 
140 
173 
143 
158 
156 
123 
114 
136 
135 

219 
358 
361 
397 
424 
387 
402 
530 
357 
382 
405 
393 

30 
42 
26 
40 
40 
24 
23 
15 
15 
13 
20 
13 

6 

12 

15 

13 

12 

3 

6 

4 

2 

1 

36 
64 
41 
53 
62 
27 
29 
19 
15 
13 
22 
14 

172         THE  PRISONER  AT  THE  BAR 

law  into  their  own  hands.  Boys  charged  with  at- 
tempting to  pick  pockets  or  burglarize  small  stores, 
with  assaulting  police  officers,  carrying  concealed 
weapons  such  as  knives  and  brass  knuckles,  having 
policy-slips  in  their  possession,  rioting,  malicious 
mischief,  etc.,  are  usually  acquitted.  This  is  because 
the  jury  think  that  they  have  been  already  punished 
enough  for  the  character  of  offence  which  they  have 
committed, — not  because  they  believe  them  innocent. 
Cases  where  the  charge  is  a  serious  one  and  which 
are  tried  before  trained  panels  on  a  substantial 
amount  of  evidence  usually  result  in  conviction.  In 
so-called  *' important'^  or  ^^star''  cases,  defendants 
are  rarely  acquitted.  If  the  reader  will  recall  the 
sensational  first  trials  of  the  last  ten  years  he  will 
find  that  there  is  hardly  a  single  acquittal  among 
them.*  It  is  the  petty  law-breaker  who  profits  by  the 
lawlessness  of  the  modern  jury. 

The  fact  that  the  prosecutor  appears  every  day 
before  the  general  panel  of  jurors  in  the  Part  to 
which  he  is  assigned  throughout  the  term  and  soon 
gains  among  them  the  reputation  of  being  fair,  and 
that  he  on  his  side  knows  their  peculiarities  and 
idiosyncrasies  is  what  makes  the  jury  system  in 
criminal  cases  work  more  accurately  and  accom- 
plish better  results  than  in  civil  trials,  where  the 
jury  usually  has  never  seen  either  counsel  before 
and  probably  distrusts  both  of  them.  A  prose- 
cutor who  knows  his  petit  jury,  its  faults,  vir- 
tues and  foibles,  can  move  an  important  case  before 

*  Peo.  vs.  Molineux,  Peo.  vs.  Bissert,  Peo.  vs.  Glennon,  Peo.  vs.  Mills, 
Peo.  vs.  Patrick,  Peo.  vs.  Ammon,  Peo.  vs.  "Al"  Adams,  Peo.  vs.  Hum- 
mel, Peo.  vs.  Wickes,  Peo.  vs.  Wooten,  Peo.  vs.  Rothschild,  Peo.  vs. 
Kanter,  Peo.  vs.  Summerfield,  Peo.  vs.  Sam  Parks,  Peo.  vs.  Weinseimer, 
Peo.  vs.  Burnham,  Peo.  vs.  Gillette,  Peo.  vs.  H.  Huffman  Browne. 


THE   TRIAL   OF   FELONIES  173 

it,  even  though  it  be  composed  of  retail  cigar  and 
newspaper  dealers  and  small  tailors  from  the 
East  Side,  more  safely  and  with  a  better  expecta- 
tion of  a  just  verdict  than  before  a  *^ special' '  panel 
of  bankers  and  architects  with  whom  he  is  unfa- 
miliar. The  ordinary  panel  at  its  daily  task  during 
the  last  two  weeks  of  every  term  illustrates  the  jury 
system  at  its  best.  Cases  moved  at  the  beginning 
of  the  term  usually  result  in  acquittals.  Occasion- 
ally a  jury  will  open  a  term  with  a  rather  unexpected 
conviction,  but  it  takes  three  or  four  days  before 
they  realize  that  a  reasonable  doubt  is  not  meant  to 
include  ^^a  mere  guess  or  conjecture  that  the  defend- 
ant may,  after  all,  be  innocent.  * '  Wily  criminal  prac- 
titioners seek  if  possible  to  have  their  cases  put  on 
the  calendars  at  the  opening  of  a  term,  and  to  secure 
adjournments  at  the  end  of  the  term  in  order  that 
they  may  go  over  to  the  beginning  of  the  next. 

Court  officers  often  win  fame  in  accordance  with 
their  ability  as  **plea  getters.  *'  They  are  anxious 
that  the  particular  Part  to  which  they  are  assigned 
shall  make  as  good  a  showing  as  possible  in  the  num- 
ber of  cases  disposed  of.  Accordingly  each  morning 
some  of  them  visit  the  pens  on  the  floor  below  the 
court-room  and  negotiate  with  the  prisoners  for 
pleas.  The  writer  suspects  that  the  assistant  in 
charge  of  the  Part  is  usually  depicted  as  a  fierce  and 
relentless  prosecutor  and  the  jury  as  a  hardened, 
heartless  crew  who  would  convict  their  own  mothers 
on  the  slightest  pretext.  The  joys  of  Elmira  as 
contrasted  with  other  places  of  confinement  are 
alluringly  described  and  a  somewhat  paradoxical 
readiness  to  accept  any  sort  of  plea,  in  view  of  his 
bull-dog  character,  is  attributed  to  the  assistant. 


174         THE  PEISONER  AT  THE  BAR 

The  writer  has  known  of  the  entire  population  of 
a  prison  pen  pleading  guilty  one  after  another  under 
the  persuasion  of  an  eloquent  bluecoat  assisted  by 
an  opportune  conviction.  Of  course  the  prisoners 
expect  to  be  treated  with  a  considerable  degree  of 
leniency,  and  if  one  of  their  comrades  goes  up  to 
plead  and  returns  with  the  story  that  the  judge  is 
^'easy''  and  the  assistant  *^all  right,''  and  a  sen- 
tence to  Elmira,  the  others  are  apt  very  quickly  to 
follow  suit.  If,  however,  the  first  of  the  batch  called 
for  trial  does  not  come  back  at  all  (having  been 
acquitted),  the  remainder  will  not  ** plead''  under 
any  circumstances.  The  same  thing  is  true  if  the 
first  prisoner  who  pleads  gets  a  severe  sentence. 
Prosecutors  anxious  to  dispose  of  business  hope  for 
light  sentences  at  the  beginning  of  the  term. 

Most  of  the  homicide  cases  are  tried  in  the  Crim- 
inal Term  of  the  Supreme  Court,  and  a  great  many 
pleas  to  ** manslaughter"  are  accepted  by  the  judge 
where  the  technical  charge  is  murder  in  the  first 
degree.  The  grand  jury  indict  for  murder  in  almost 
every  homicide  case  on  the  theory  that  some  evi- 
dence may  possibly  be  given  at  the  trial  which  will 
warrant  such  a  verdict.  A  very  large  proportion  of 
these  defendants  plead  guilty  to  manslaughter,  and 
are  encouraged  in  all  legitimate  ways  to  do  so. 
About  two  years  ago,  in  the  Supreme  Court,  the  first 
defendant  called  to  the  bar  concluded  that  discretion 
was  the  better  part  of  valor  and  pleaded  guilty.  The 
judge,  who  had  never  sat  in  Criminal  Term  before, 
promptly  gave  him  eighteen  years, — only  two  less 
than  the  maximum,  although  the  shooting  had  oc- 
curred during  a  quarrel  over  a  game  of  ** craps." 
Not  a  single  other  prisoner  offered  a  plea  to  any 


THE   TEIAL   OF   FELONIES 


175 


degree  of  crime  during  the  remainder  of  the 
term. 

A  great  deal  of  interest  is  felt  everywhere  in  the 
practical  results  of  the  jury  system,  and  particularly 
in  the  proportion  of  convictions  to  acquittals.  Fig- 
ures purporting  to  show  such  ratios  should  be  scru- 
tinized with  great  care,  as  they  usually  include 
among  ** verdicts  of  conviction''  pleas  of  guilty  vol- 
untarily offered  by  the  defendant,  and  similarly  in- 
clude among  ** acquittals''  all  cases  where  defend- 
ants are  discharged  without  trial  on  the  motion  of 
the  prosecutor.  The  only  figures  which  have  any 
particular  bearing  on  the  question  of  how  far  the 
jury  system  is  efficacious  are  those  drawn  from  the 
results  of  actual  trials  in  which  verdicts  have  been 
rendered. 

The  following  table  shows  the  comparative  num- 
ber of  convictions,  pleas,  acquittals,  etc.,  in  New 
York  County  during  the  last  eight  years : 


I 

s 

1 

<R.2 

1 

1 
i 

'J 

ll 

^1 

!•= 

Mft 

Year 

.2 
> 

1 

p 

1 

o.S 

t3 
03 

Jll 

ft  ^ 

V 

5° 

II 

1 

1900. 

424 

1,672 

733 

366 

185 

76 

74 

13 

60 

19 

1.093 

4 

141 

4.860 

1901. 

551 

1,838 

688 

434 

192 

165 

113 

8 

77 

36 

1,045 

4 

116 

5.267 

1902. 

419 

2,009 

698 

351 

457 

257 

97 

5 

67 

62 

863 

2 

73 

5,360 

1903. 

485 

1.918 

615 

321 

299 

92 

62 

12 

65 

40 

807 

7 

86 

4,809 

1904. 

495 

1,971 

700 

363 

272 

50 

63 

8 

63 

37 

898 

20 

99 

5,039 

1905. 

489 

2,001 

602 

352 

207 

57 

51 

8 

82 

38 

1,035 

5 

93 

5,020 

1906. 

464 

2,079 

560 

428 

344 

99 

47 

11 

137 

45 

980 

2 

69 

5,265 

1907. 

682 

2,266 

656 

493 

202 

100 

45 

12 

179 

38 

1,529 

4 

131 

6,237 

Total 

3.909 

15.754 

5,252 

3,108 

2,158 

896 

552 

77 

730 

315 

8.250 

48 

808 

41,857 

During  1907  in  New  York  County  out  of  4,573 
indictments  .62  per  cent  (including  pleas  of  guilty) 
resulted  in  convictions.    The  following  table  shows 


176 


THE  PEISONER  AT  THE  BAR 


a  gradually  increasing  percentage  of  such  convic- 
tions for  the  past  eight  years : 


Year 

Number  of  Indict- 
ments Disposed  of 

Total  Convictions 

Ratio 

1900        

3,620 
4.096 
4,410 
3,909 
4,022 
3.887 
4,214 
4,573 

2,096 
2,389 
2,428 
2.403 
2.466 
2,490 
2,543 
2,848 

.5790 

1901 

.5839 

1902 

.5506 

1903 

.6144 

1904 

.6131 

1905    

.6405 

1906 

.6035 

1907 

.6228 

During  this  eight-year  period  32,731  indictments 
were  finally  disposed  of  either  by  trial,  plea,  direc- 
tion of  the  court  or  on  the  recommendation  of  the 
district  attorney.  These  dispositions  bear  the  fol- 
lowing ratios  to  each  other : 


Year 

Convic- 
tions by 
Verdict 

Pleas  of 
GuUty 

Acquittals 
by  Verdict 

Acquittals 
Directed 

Discharges 

Minor  Dis- 
positions 

1900 

1901 

1902 

1903 

1904 

1905 

1906 

1907 

.1171 
.1345 
.0950 
.1239 
.1231 
.1258 
.1101 
.1273 

.4619 
.4487 
.4556 
.4905 
.4901 
.5148 
.4934 
.4955 

.1013 
.0840 
.0792 
.0786 
.0887 
.0769 
.0584 
.0577 

.1012 
.0840 
.0791 
.0785 
.0853 
.0779 
.0745 
.0857 

.1707 
.1831 
.2324 
.1770 
.1685 
.1585 
.2067 
.1739 

.0478 
.0657 
.0587 
.0515 
.0443 
.0461 
.0569 
.0599 

What  the  reader  is  naturally  most  curious  to  dis- 
cover is  in  what  proportion  of  cases  (where  they 
had  any  say  in  the  matter  at  all)  the  jury  let  the 
defendant  go.  Roughly  speaking,  the  proportion  of 
convictions  to  acquittals  hy  actual  verdict  is  consid- 
erably more  than  two  to  one, — the  ratio  for  1907 
being  as  69  is  to  31: 


Year 

Number 
Convictions 
by  Verdict 

Number 
Acquittals 
by  Verdict 

Convictions 
Per  Cent 

Acquittals 
Per  Cent 

1900 

424 
551 
419 
485 
495 
489 
464 
582 

367 
344 
349 
307 
357 
299 
246 
264 

54 
62 
55 
61 
58 
62 
65 
69 

46 

1901 

38 

1902 

45 

1903 

39 

1904 

42 

1905 

1906 

38 
35 

1907.      . 

31 

THE   TRIAL   OF   FELONIES  177 

The  writer  desires  very  particularly  not  to  be 
understood  as  suggesting  that  because  the  district 
attorney  in  all  these  cases  thought  the  defendant 
guilty  or  even  knew  him  to  be  guilty,  the  action 
of  the  jury  was  necessarily  improper.  So  far 
as  his  opinion  may  be  worth  anything  he  be- 
lieves thoroughly  in  the  jury  system  in  criminal 
cases,  with  some  trifling  modifications.  In  a  vast 
proportion  of  the  cases  in  which  acquittals  re- 
sulted there  was  undoubtedly  room  for  an  honest 
difference  of  opinion  as  between  reasonable  men, — 
men  in  the  long  run  better  qualified  to  judge  of  the 
defendant's  guilt  on  the  evidence  than  the  prosecu- 
tor himself,  who  is  always  at  the  disadvantage  of 
knowing  the  *  *  inside ' '  or  *  ^  unprovable ' '  elements  of 
the  People 's  case,  a  fact  which  is  apt  to  lead  him  to 
believe  that  the  record  establishes  his  own  contention 
more  than  it  appears  to  do  so  to  the  jury.  The 
propriety  of  any  jury's  action  must  be  determined 
only  upon  the  basis  of  the  evidence  presented  to 
them,  and  upon  which  they  are  permitted  to  act.  The 
writer  is  inclined  to  believe  that  nearer  eighty  than 
seventy  per  cent  of  the  defendants  tried  should  be 
convicted.  In  the  heat  of  conflict  he  might  even 
claim  ninety  per  cent  and  maintain  that  if  a  majority 
of  eleven  on  each  jury  could  render  a  verdict,  nine 
out  of  every  ten  defendants,  after  a  hearing  in  the 
magistrate's  court,  an  examination  by  the  grand 
jury,  and  a  careful  investigation  by  the  prosecutor's 
office,  should  be  convicted.  The  writer  submits  that 
the  increasing  percentage  of  convictions  shown  on  the 
opposite  page  is  evidence  of  the  effectiveness  of  the 
jury  in  criminal  cases  in  New  York  County. 


CHAPTER  X 
THE  JUDGE 

The  two  principal  functions  of  the  judge  of  a 
criminal  court  are,  first,  to  preside  at  the  trial,  de- 
claring the  law  and  seeing  to  it  that  the  rules  of 
procedure  and  of  evidence  are  properly  observed 
and,  second,  to  impose  sentence  in  case  of  a  con- 
viction. In  the  first  case  he  is  a  judge  of  the  law ;  in 
the  last  he  becomes  a  judge  of  the  facts.  It  would 
be  impossible  to  say  which  of  these  duties  is  the  more 
important,  but  the  latter  is  certainly  vastly  the  more 
difficult.  An  unjust  sentence  is  as  bad,  if  not  worse, 
than  an  unfair  trial,  for  the  defendant  does  not  have 
a  chance  of  escape  and,  since  punishment  is  a  matter 
of  discretion  upon  the  part  of  the  judge,  it  cannot  be 
considered  or  reversed  on  appeal.  It  must  be  of 
precious  little  satisfaction  to  a  convicted  prisoner 
to  know  that  he  has  had  a  perfectly  impartial  trial, 
if  at  the  same  time  he  receives  a  sentence  four  times 
longer  than  he  deserves,  and  equally  little  consola- 
tion to  a  prosecutor  when,  after  a  fair  contest,  he  has 
convicted  a  political  rascal  of  influence  if  the  judge 
** suspend  sentence"  and  the  defendant  is  permitted 
to  walk  the  streets  in  spite  of  his  offences. 

The  amount  of  learning  requisite  to  preside  with 
efficiency  at  an  ordinary  criminal  trial  is  compara- 
tively small,  and  provided  the  judge  be  honest,  im- 
partial, possessed  of  common-sense  and  what  is 
known  as  *^ backbone,"  neither  prosecutor  nor  de- 
ns 


THE   JUDGE  179 

fendant's  counsel  need,  as  a  rule,  complain,  but  the 
trouble,  time,  courage  and  discrimination  necessary 
adequately  to  determine  what  punishment  should  be 
meted  out  to  a  particular  offender  for  a  given  offence 
cannot  well  be  overestimated.  It  is  not  a  difficult 
matter  to  preside  with  dignity  at  a  trial,  preserve 
order,  exclude  hearsay  testimony,  apply  the  other 
simple  rules  of  evidence  that  are  ordinarily  involved 
in  a  case  of  assault,  larceny,  burglary  or  homicide, 
and  instruct  a  jury  as  to  **  reasonable  doubt,  ^'  **good 
reputation"  and  the  ** presumption  of  innocence" 
in  words  of  one  syllable.  We  may  fairly  assume  that 
it  is  no  harder  for  the  ordinary  judge  to  try  a  man 
for  picking  a  pocket  than  it  is  to  dress  himself  in  the 
morning.  It  must  in  time  become  automatic  if  not 
almost  sub-conscious.  He  could  probably  do  it  in 
his  sleep.  Most  petty  criminal  cases  **try  them- 
selves. * '  The  trouble  begins  when  the  same  judge  is 
compelled  to  decide  whether  the  convict  shall  be 
sent  to  the  Elmira  Eeformatory  (where  he  may 
reasonably  expect  to  be  discharged  in  fourteen 
months)  or  to  State's  prison  for  twenty  years. 

Let  us  consider  first  the  conduct  of  the  judge  dur- 
ing the  trial  itself.  Theoretically  it  is  his  duty,  at 
least  in  most  States  of  the  Union,  simply  to  declare 
the  law  governing  the  case  and  to  rule  impartially 
upon  the  questions  of  evidence  presented.  He  is 
supposed  to  give  no  hint  of  his  own  opinion  as  to 
whether  or  not  the  defendant  should  be  convicted 
and  to  refrain  from  any  marshalling  of  the  facts 
claimed  to  have  been  proven  by  either  side  in  such 
a  way  as  to  influence  the  verdict  of  the  jury.  In 
England  he  may  and  generally  does  **sum  up"  the 
case ;  in  America  such  a  course  would  usually  be  a 


180         THE  PEISONEE  AT  THE  BAR 

ground  for  reversal,  his  function  being  limited  to 
an  abstract  discussion  of  the  law  involved,  with 
little  reference  to  the  facts  save  in  so  far  as  it  may  be 
necessary  for  purposes  of  illustrating  the  way  in 
which  the  jury  shall  apply  it.  He  is  supposed  to  sit 
upon  his  dais  serenely,  indifferent  as  to  whether 
a  murderer  be  convicted  or  acquitted,  whether 
an  inexperienced  assistant  district  attorney  be 
*^ trounced'^  by  an  astute  criminal  lawyer  with  a 
couple  of  generations  of  trial  experience,  or,  on  the 
other  hand,  a  bulldozing  prosecutor  bedevil  a  miser- 
able prisoner,  defended  by  an  ignorant  and  untutored 
counsel,  into  State's  prison, — provided  either  be 
done  within  the  strict  rules  of  evidence  and  proper 
court  behavior. 

This  may  be  all  very  well  in  theory, — ^but  it  is  very 
far  from  what  is  either  followed  in  practice  or,  to 
speak  frankly,  desirable.  What  the  people  want  in 
our  criminal  courts  is,  of  course,  a  '  *  fair  trial, ' '  but 
they  want  a  *  *  fair  trial  *  *  that  results  in  the  acquittal 
of  the  innocent  and  the  conviction  of  the  guilty, 
— so  long  as  he  is  convicted  by  what  they  deem 
fair  means.  The  people  do  not  expect  a  judge 
to  be  more  than  human.  Did  he  appear  as  in- 
different to  results  as  theory  might  seem  to  re- 
quire the  jury  would  quickly  infer  that  the  case 
was  of  slight  importance  and  their  action  a  matter 
of  utter  indifference  to  the  court.  Juries  need  to  be 
kept  in  order  and  made  to  behave  themselves,  and, 
if  judges  did  not  from  time  to  time  exert  a  discipli- 
nary influence,  would  easily  run  wild  and  become 
hopelessly  demoralized.  It  is  almost  impossible  to 
overestimate  the  awe  with  which  the  ordinary  jury- 
man regards  the  judge  presiding  at  a  criminal  trial. 


THE   JUDGE  181 

He  may  have  a  supreme  contempt  for  his  personality 
or  private  conduct,  but  once  let  the  judicial  ermine 
enshroud  the  individual  and  he  sees  only  the  judge, 
— the  personification  of  the  law,  the  autocrat  of  the 
court-room,  the  *^boss''  of  the  particular  *'job'' 
upon  which  he  is  temporarily  employed.  He  knows 
nothing  of  the  abstract  theory  of  the  situation.  He 
wants  to  do  well  as  a  juryman  and  believes,  quite 
naturally,  that  an  improper  verdict  will  be  visited 
by  the  judicial  wrath  and  a  just  one  be  acknowledged 
by  a  look  of  benignant  commendation.  If  he  thought 
the  judge  did  not  care  he  would  take  little  interest  in 
the  business  himself,  and  the  apprehension  of  the 
court  ^s  approval  or  disapproval  is  an  ever-present 
factor  in  keeping  him  doing  conscientious  work, — - 
quite  as  important  in  its  results  as  his  own  lightly 
murmured  oath  as  a  juror. 

The  judge,  in  addition  to  his  theoretic  duties,  is 
in  effect  the  individual  who  must  keep  the  gang  at 
work  and  see  that  every  one  of  them  earns  his  two 
dollars  a  day.  If  he  appeared  to  them  to  be  star- 
gazing or  studying  Epictetus  they  would  soon  rest 
on  their  shovels.  Many  juries  take  their  cue  from 
the  court,  laughing  when  he  laughs,  and  frowning 
when  he  frowns,  and  instinctively,  however  much  he 
may  admonish  them  to  the  contrary,  trying  to  deter- 
mine from  his  manner  and  charge  what  his  own 
impression  of  the  case  may  be. 

Now,  a  judge  who  has  sat  for  ten  or  fifteen  years 
on  the  criminal  bench  is  usually  keener  to  detect  a 
liar  or  see  through  a  *'faked''  defence  than  any 
twelve  men  drawn  indiscriminately  from  different 
walks  of  business  activity.  A  timely  question  from 
him  may  demolish  a  perjured  explanation  which,  but 


182         THE  PEISONEK  AT  THE  BAR 

for  his  interference,  would  have  acquitted  a  guilty 
criminal.  Theoretically  it  is  none  of  his  business. 
Practically  it  is.  An  inexperienced  prosecutor  may 
be  so  inadequate  to  the  task  of  coping  with  some 
old  war-horse  of  a  lawyer  that  save  for  the  assist- 
ance of  the  court  a  rascal  would  be  turned  loose 
upon  the  community;  or,  turn  about,  a  stupid  lawyer 
may  convict  his  own  client  if  not  prevented  by  a  con- 
siderate presiding  justice.  Theoretically  the  judge 
must  let  the  parties  fight  it  out  by  themselves.  In 
point  of  fact  it  is  his  business  to  even  things  up. 
The  old  country  judge  was  not  so  far  wrong  when 
on  being  assigned  to  the  criminal  term  of  the  Su- 
preme Court  in  New  York  City  he  said  to  the  prose- 
cutor : 

**Mr.  District  Attorney,  I  reckon  that,  between  us, 
we  shall  let  no  innocent  man  be  convicted, — and  no 
guilty  man  escape. '* 

Practically  this  expresses  in  a  nutshell  the  popu- 
lar idea  of  what  a  criminal  judge  is  for,  and  it  is 
certainly  the  idea  which  pervades  the  minds  of  the 
jury.  Nothing  can  eradicate  it.  It  is  a  fact, — an 
existing  condition,  which  the  court  must  inevitably 
take  into  consideration  in  determining  his  course  of 
conduct  upon  the  bench.  By  this  it  is  not  meant  that 
a  judge  should  be  either  counsel  for  the  defendant 
or  district  attorney,  nor  that  he  should  force  his 
ideas  upon  the  jury,  but  simply  that  to  be  effective 
he  must  be  more  than  a  nonentity,  a  mere  law  book, 
or  an  ornament,  must  guide  the  course  of  the  trial, 
and,  in  default  of  its  being  done  by  the  counsel  on 
either  side,  test  by  his  questions  the  truth  or  falsity 
of  the  testimony.  More  than  this,  he  should  in  his 
charge  indicate  the  tests  which  the  jury  should  apply 


THE   JUDGE  183 

to  the  various  phases  of  the  evidence  and,  while  not 
influencing  them  upon  the  questions  of  fact  which 
they  are  to  determine,  should  nevertheless  so  eluci- 
date their  task  that  they  may  be  guided  in  their 
deliberations  and  not  go  astray  among  the  tangled 
underbrush  of  an  adroit  counsellor's  '* requests  to 
charge. ' ' 

The  writer  has  endeavored  in  the  preceding  para- 
graphs to  set  forth  briefly  the  theoretical  function 
of  the  judge  as  opposed  to  his  proper  practical  func- 
tion if  he  is  to  be  of  any  value  in  the  actual  adminis- 
tration of  criminal  justice.  One  more  step  is  neces- 
sary, namely,  to  comment  on  the  actual  conduct  of 
some  judges  who  from  natural  disposition  or  a  con- 
scientious purpose  to  **do  justice''  are  inclined  to 
usurp  the  function  of  the  jury  and  practically  to 
direct  either  an  acquittal  or  a  conviction. 

Under  our  prevailing  doctrines  the  court  has  no 
right  to  influence  the  jury  on  the  facts  in  the  slight- 
est degree,  and  indeed  most  judges  expressly  direct 
the  jury  to  disregard  absolutely  any  idea  they  may 
have  obtained  of  what  the  court's  opinion  may  be. 
This,  in  the  face  of  the  balance  of  the  charge,  must 
often  seem  paradoxical  to  the  talesman,  for  few 
judges  entirely  succeed  in  concealing  their  own 
views  of  the  case,  however  hard  they  may  honestly 
try  to  do  so. 

It  is  quite  as  foreign  to  the  spirit  of  our  institu- 
tions for  a  judge  to  interfere  with  the  jury  on  ques- 
tions of  fact  as  for  a  jury  to  arrogate  to  itself  the 
decision  of  points  of  law.  The  system  is  designed 
to  do  **  justice"  by  means  of  its  several  parts  work- 
ing harmoniously  together,  but  neither  part  **  work- 
ing justice"  by  itself.     If  the  judge  arrogate  the 


184         THE  PRISONER  AT  THE  BAR 

jury's  function,  the  jury  becomes  superfluous.  This 
is  not  the  intent  of  the  Constitution.  There  is  no 
real  trial  by  jury  when  the  judge  decides  the  whole 
matter,  and  it  would  be  far  more  dangerous  for  a 
single  man  to  act  as  arbiter  of  the  defendant's  fate 
than  for  twelve.  Yet  more  or  less  consciously  there 
is  often  a  tendency  upon  the  part  of  the  criminal 
bench  to  lend  itself  to  the  success  of  one  party  or 
the  other,  however  positively  it  may  declare  and 
direct  to  the  contrary.  The  actual  amount  of  sug- 
gestion needed  to  give  the  jury  an  effective  hint  is 
infinitesimal.  The  almost  imperceptible  accentua- 
tion of  a  word,  the  slightest  lifting  of  an  eyebrow, 
and  a  verdict  has  been  determined — ^by  the  judge. 

Now  a  printed  record  on  appeal  fails  utterly  to 
disclose  the  tone  of  the  voice  or  the  stage  effects  of 
a  judge's  charge.  A  distinguished  member  of  the 
bench,  now  long  since  deceased,  was  accustomed  to 
deliver  charges  so  drastic  that  a  defendant  charged 
with  a  serious  offence  rarely,  if  ever,  escaped.  Upon 
appeal  absolutely  no  exception  could  be  taken  to  his 
remarks,  yet  nothing  more  unfair  could  be  conceived 
of.  The  record  would  show  that  the  judge  had 
charged : 

* '  If  you  believe  the  defendant 's  testimony  you  will 
of  course  acquit  him.  He  is  presumed  to  be  inno- 
cent until  the  contrary  is  proved.  If  you  have  any 
reasonable  doubt  as  to  his  guilt  you  must  give  him 
the  benefit  of  it.  On  the  other  hand,  if  you  accept 
the  testimony  offered  by  the  People  you  may  and 
will  convict  him. ' ' 

Now,  nothing  on  its  face  would  seem  to  be  fairer. 
What  the  jury  actually  heard  was: 

**If  [scornfully]  you  believe  the  defendant's  testi- 


THE   JUDGE  185 

mony  you  will  of  course  acquit  him.  He  is  presumed 
[with  a  shrug  of  the  shoulders]  to  be  innocent  until 
the  contrary  is  proved.  If  you  have  [another  shrug] 
any  reasonable  doubt  as  to  his  guilt  you  must  give 
him  the  benefit  of  it.  On  the  other  hand,  if  you  ac- 
cept the  testimony  offered  in  behalf  of  the  People 
you  may  and  will  convict  him!''  [The  last  few 
words  in  tones  of  thunder.] 

Sometimes  a  judge  becomes  known  as  a  **  convict- 
ing'^  judge,  although,  perhaps,  at  the  same  time  as 
a  learned  one.  This  usually  occurs  where  a  man  of 
pronounced  opinions  with  the  advocate's  tempera- 
ment is  elevated  to  the  bench.  Very  likely  by  in- 
clination he  is  a  ** prosecutor,"  with  strong  preju- 
dices against  law-breakers  and  bitterly  intolerant 
of  technicalities.  The  powers  that  prey  may  cower 
inert  in  their  dens  of  darkness  knowing  full  well 
that  if  one  of  them  be  haled  before  this  Jeffries  he 
will  pay  the  uttermost  penalty.  Yet  the  spectacle 
of  such  a  judge  does  not  increase  the  public  respect 
for  law,  and  juries  sometimes  revolt  and  acquit  out 
of  sheer  resentment  at  such  dictation.  But  happily 
these  men  are  of  the  past,  and  the  more  enlightened 
sentiment  of  to-day  would  frown  as  much  upon  a 
*4ianging''  judge  as  upon  a  jelly-backed  wearer  of 
the  gown  who  was  afraid  of  the  displeasure  of  some 
politician  if  a  **  heeler '^  were  convicted  and  who 
ruled  systematically  against  the  people  because  they 
had  no  appeal  and  could  take  no  exceptions  to  his 
conduct. 

Nothing  strikes  so  sharply  at  our  conception  of 
liberty  as  the  failure  of  criminal  justice,  and  the 
conviction  of  a  defendant  not  legally  proven  guilty 
or  the  acquittal  of  an  influential  criminal  has  a  more 


186         THE  PEISONER  AT  THE  BAR 

disastrous  effect  upon  the  body  politic  than  ten  thou- 
sand bales  of  anarchistic  propaganda.  The  partisan 
judge,  who  makes  up  his  mind  to  convict  or  acquit  if 
he  can,  may  be  right  nine  times  out  of  ten,  but  the 
other  time  he  commits  an  outrage.  The  judicial 
temperament  is  a  jewel  above  all  price.  The  writer 
recalls  a  certain  case  of  a  variety  subject  at  the  time 
to  great  public  condemnation,  where  the  judge  before 
the  indictment  was  moved  for  trial,  inquired  casually 
of  the  clerk  what  the  defendant  was  charged  with. 
When  he  learned  the  nature  of  the  accusation  he 
exclaimed  audibly: 

*'Ha!    He's  one  of  those s,  is  he?    Well,  I'll 

try  this  case ! ' '  And  he  did.  Unfortunately  judges 
often  ^Hry"  cases,  either  for  the  defendant  or 
against  him. 

Nothing  is  more  unfortunate  for  the  judicial  equi- 
librium than  the  fact  that  the  prosecution  has  no 
right  of  appeal  in  the  event  of  a  verdict  of  acquit- 
tal. The  judge  may  persistently  prevent  the  dis- 
trict attorney  from  putting  questions  which  are 
both  competent  and  proper  and  rule  flatly  against 
him  on  the  most  obvious  points  of  law  without  any 
redress  on  the  part  of  the  people.  A  weak  judge  will 
take  no  chances  on  being  reversed  and  will  pursue 
this  course,  while  at  the  same  time  he  is  allowing 
every  latitude  to  defendant's  counsel  and  is  ruling 
in  his  favor  in  defiance  of  the  established  doctrines 
of  law. 

A  criminal  lawyer  of  great  adroitness,  learning 
and  probity,  after  he  had  concluded  an  argument  of 
the  most  utter  absurdity  to  which  the  presiding  judge 
had  listened  with  much  attention  and  apparent  con- 
sideration, frankly  stated  to  the  writer : 


THE   JUDGE  187 

*^You  think  my  argument  was  nonsense?  "Well, 
you  are  quite  right,  it  was.  But  no  proposition  of 
law  is  too  far-fetched  or  ridiculous  to  be  advanced 
in  behalf  of  a  defendant  without  some  prospect  of 
success  in  our  criminal  courts. ''  The  lawyer  in 
question  will  undoubtedly  recognize  his  dictum  in 
these  pages. 

The  attitude  and  disposition  of  the  various  judges 
becomes  speedily  known  among  the  members  of  what 
is  popularly  known  as  the  ^^ criminal  bar,"  and 
heroic  efforts  (often  successful)  are  made  to  bring 
certain  cases  before  the  **  right '^  judge. 

^*Do  you  think  I'd  try  the  Smith  case  before 
? ' '  one  will  say.    *  *  Not  on  your  life ! ' ' 

In  similar  fashion  lawyers  retained  by  complain- 
ants will  seek  to  have  their  cases  put  on  the  calendar 
of  such  and  such  a  judge. 

**Put  it  before ,''  they  will  say.    *'He's  hell 

on  larceny!'' 

Some  judges  are  supposed  to  be  more  lenient  in 
the  matter  of  sentences  than  their  brothers  of  the 
bench,  but  the  writer,  after  six  years  of  observation, 
believes  this  to  be  a  fiction.  They  are  all  lenient, — 
entirely  too  much  so. 

Much  of  the  impression  among  criminal  lawyers 
that  they  will  fare  worse  at  the  hands  of  one  mem- 
ber of  the  judiciary  than  another  is  due  to  the 
obvious  fact  that  some  judges  are  by  reason  of  their 
training  better  suited  to  sit  in  certain  classes  of  cases 
than  others.  One  may  have  had  an  exhaustive  ex- 
perience in  commercial  matters  and  thus  be  bet- 
ter qualified  to  pass  upon  the  questions  of  law 
involved  therein.  Another  may  have  heard  many 
complicated  cases  involving  expert  testimony,  etc., 


188         THE  PRISONER  AT  THE  BAR 

etc.  Of  course  as  a  rule  the  less  well  equipped  a 
judge  is  to  hear  a  certain  kind  of  case  the  more  apt 
he  will  be  to  listen  to  ill-founded  argument  on  the 
law  or  the  facts.  No  insurance  swindler  would  want 
to  be  tried  before  an  expert  on  insurance  law.  He 
would  very  naturally  prefer  a  judge  whose  expe- 
riences had  converged  upon  assault  and  battery.  It 
must  be  admitted  that  occasionally  a  judge  is  to  be 
found  who  seems  to  feel  that  every  complainant  who 
has  lost  money  in  a  commercial  transaction  has  no 
standing  in  the  criminal  courts  but  must  be  relegated 
to  civil  tribunals.  This  is  but  another  way  of  say- 
ing that  such  a  judge  does  not  believe  that  the  crim- 
inal law  is  meant  to  cover  cases  where  there  has  been 
fraud  in  commercial  transactions.  This  is  hardly 
to  be  wondered  at  considering  the  present  ineffect- 
iveness of  our  statutes  governing  such  classes  of 
crime. 

The  writer  recalls  prosecuting  such  a  case  before 
a  certa  in  judge  who,  after  hearing  some  rather  com- 
plicated evidence  in  regard  to  certain  written  instru- 
ments, called  abruptly  for  the  defendant.  The  latter 
took  the  stand,  and  the  judge  inquired  with  a  smile : 

**You  didn't  intend  to  cheat  this  man,  did  you!'' 

** Certainly  not!"  cried  the  defendant. 

*  *  Gentlemen  of  the  jury ! ' '  said  the  judge.  '  *  This 
is  not  the  kind  of  case  that  should  be  brought  before 
a  jury  at  all.  This  court  is  not  the  place  to  collect 
civil  debts.    I  instruct  you  to  acquit." 

Learning  wisdom  by  experience,  the  writer  moved 
the  case  of  the  co-defendant  for  trial  before  another 
judge  and  convicted  him,  although  he  was,  if  any- 
thing, less  guilty  than  the  first.  He  was  sentenced 
to  a  substantial  term  in  State's  prison. 


THE   JUDGE  189 

As  a  rule,  however,  little  fault  can  be  found  with 
the  conduct  of  our  judges  at  criminal  jury  trials.  In 
some  instances  it  may  seem  to  one  side  or  the  other 
that  a  judge  shows  bias,  but  these  cases  are  compar- 
atively few  and  seldom  result  in  any  actual  miscar- 
riage of  justice.  If  some  judges  are  inclined  to  rule 
against  the  People  upon  doubtful  questions  of  law, 
this  in  the  long  run  has  at  least  the  beneficial  effect 
of  reducing  the  number  of  cases  reversed  upon  ap- 
peal. The  judges  are  almost  invariably  courteous, 
long-suffering,  and  given  to  allowing  the  greatest 
latitude  to  each  side  in  getting  its  evidence  before 
the  jury.  In  addition  they  are  practical  men  of  com- 
mon-sense, most  of  them  of  long  and  profitable  expe- 
rience, and  experts  in  the  rapid  disposition  of 
business. 

Let  us  now  turn  to  the  other  and  no  less  important 
function  of  the  judge, — the  imposition  of  sentence. 
It  is  a  platitude  that  the  chief  failing  of  modern 
criminal  justice  is  the  inequality  of  punishment. 
It  may  well  be  and  often  is  the  case  that  in  one 
branch  of  the  General  Sessions  a  prisoner  is  being 
released  upon  *^ parole''  under  a  ** suspended"  sen- 
tence at  the  precise  moment  that  some  other  and  no 
more  guilty  defendant  in  another  branch  of  the  same 
court  is  being  sentenced  to  prison  for  three,  five  or 
even  ten  years  at  hard  labor. 

That  most  able  and  practical  of  English  criminal 
judges.  Sir  Henry  Hawkins,  has  this  to  say  in  his 
reminiscences  in  the  matter  of  sentences  of  con- 
victed persons : 

**The  want  of  even  an  approach  to  uniformity  in 
criminal  sentences  is  no  doubt  a  very  serious  matter, 
and  is  due,  not  to  any  defect  in  the  criminal  law 


190         THE  PEISONER  AT  THE  BAR 

(much  as  I  think  that  might  be  improved  in  many 
respects),  but  is  owing  to  the  great  diversity  of 
opinion,  and  therefore  of  action,  which  not  unnatu- 
rally exists  among  criminal  judges.     .    .    . 

**The  result  of  this  state  of  things  is  extremely 
unsatisfactory,  and  the  most  glaring  irregularities, 
diversity  and  variety  of  sentences  are  daily  brought 
to  our  notice,  the  same  offence  committed  under 
similar  circumstances  being  visited  by  one  judge 
with  a  long  term  of  penal  servitude,  by  another  with 
simple  imprisonment,  with  nothing  appreciable  to 
account  for  the  difference. 

**In  one  or  the  other  of  these  sentences  discretion 
must  have  been  erroneously  exercised.  =  .  .  Ex- 
perience, however,  has  told  us  that  the  profoundest 
lawyers  are  not  always  the  best  administrators  of 
the  criminal  law.     .     .     .  *  * 

Sir  Henry  likewise  speaks  of  the  great  intellectual 
difficulty  of  a  conscientious  English  judge  in  try- 
ing to  determine  for  himself  the  amount  of  pun- 
ishment he  should  inflict  in  any  given  case.  The 
English  bench  occupies  an  altitude  practically 
unknown  in  this  country.  Access  to  it  is  far 
less  easy  than  with  us,  and  the  personal,  famil- 
iar, and  off-hand  method  of  communication  be- 
tween the  judge  and  the  bar,  not  to  mention  inter- 
ested outside  parties,  witnesses,  and  relatives  of  the 
defendant,  in  vogue  in  our  trial  courts  would  hardly 
be  viewed  there  with  favor.  It  is  the  wholesale 
attempted  interference  with  the  action  of  the  judges 
in  our  criminal  courts  that  imparts  a  flavor  of  inde- 
cision and  arbitrariness  to  so  many  scenes  upon  a 
sentence  day.  It  is  not  unheard  of  to  see  a  prisoner 
actually  at  the  bar  awaiting  sentence  while  the  judge 


THE   JUDGE  191 

upon  the  bench  holds  a  sort  of  open  levee,  free  to  all 
comers,  in  which  the  prisoner 's  lawyer,  his  wife,  the 
officer  who  made  the  arrest,  the  complainant,  and 
the  district  attorney  (and  sometimes  others  who 
have  far  less  claim  to  be  heard)  endeavor  to  bring 
the  judge  to  their  own  particular  way  of  thinking, 
and  harangue  him  and  each  other  in  tones  by 
no  means  always  either  deferential  or  amicable. 
Meanwhile  the  judge  who  will  permit  any  such  per- 
formance sits  with  an  expression  of  exasperated  in- 
decision, and  usually  finally  ends  the  matter  by 
*^ remanding"  the  prisoner  for  further  investiga- 
tion. Such  scenes  are  calculated  to  bring  the  admin- 
istration of  justice  into  contempt.  Snap-shot  judg- 
ments formed  in  the  midst  of  an  altercation  may  be 
unfair  to  the  defendant  and  frequently  are  so  to  the 
People.  A  judge  who  tries  to  please  everybody  ends 
by  pleasing  nobody  and  makes  a  farce  of  justice. 
The  administration  of  the  criminal  law  is  not  a  pleas- 
ing matter  nor  is  it  conducted  for  the  purpose  of 
pleasing  the  various  parties.  The  judge  is  there  to 
attend  to  his  own  business  and  make  his  own  deci- 
sions. The  writer  once  heard  a  judge  inflict  sentence 
in  the  following  manner : 

**Your  counsel  says  sentence  ought  to  be  sus- 
pended upon  you.  The  district  attorney  says  you 
ought  to  get  five  years  in  State's  prison.  Well,  I'll 
split  the  difference  and  send  you  to  the  Elmira 
Reformatory. ' ' 

The  sentence  may  have  been  the  result  of  a  con- 
scientious and  careful  attempt  upon  the  part  of  the 
judge  to  decide  the  question,  but  the  phraseology  in 
which  it  was  couched  will  hardly  commend  itself  as 
a  standard. 


192         THE  PRISONER  AT  THE  BAR 

A  thousand  indefinite  factors  enter  into  the  deter- 
mination of  the  exact  amount  of  punishment  to  be 
meted  out  to  an  offender,  and  relatively  trivial  cir- 
cumstances may  eventually  decide  whether  the  stroke 
of  the  judge 's  pen  in  his  sentence  book  shall  swerve 
from  a  ^ ^ three ^'  into  a  ^^five.^^  Assuming  that  the 
judge  have  the  rectitude  of  a  granite  monolith  and 
be  impervious  to  infiuence  of  every  sort,  he  is  never- 
theless compelled  when  inflicting  sentence  to  depend 
in  large  measure  upon  ^4iearsay"  testimony  and  evi- 
dence that  could  not  possibly  be  admitted  upon  actual 
trial.  He  seeks  to  find  out  if  he  can  what  the  past 
record  and  reputation  of  the  defendant  have  been, 
and  in  so  doing  often  is  forced  to  rely  almost  en- 
tirely upon  the  word  of  the  officer  who  originally 
made  the  arrest.  If  the  latter  be  vindictive  he  can 
easily  convey  the  impression  that  the  defendant  is 
a  man  of  the  worst  possible  character  who  has 
hitherto  had  the  luck  to  escape  being  caught.  In 
most  cases  the  prisoner  has  little  opportunity  to 
traverse  these  vague  and  generally  unheard  allega- 
tions. Again  it  often  happens  that  he  has  been  pre- 
viously arrested.  This  fact  is  of  course  excluded 
upon  the  trial  for  his  present  crime  upon  the  com- 
mon-sense doctrine  that  the  fact  of  his  former  arrest 
of  itself  proves  nothing  whatever  as  to  his  guilt  or 
innocence  of  the  charge  upon  which  he  was  thus 
arrested.  When,  however,  he  comes  up  for  sentence 
it  is  frequently  considered  by  the  court,  no  matter 
what  the  subsequent  disposition  of  the  case  against 
him  may  have  been,  on  the  general  assumption  that 
^^  where  there  is  so  much  smoke  there  is  generally  a 
little  fire. ' '  If  he  has  actually  been  convicted  before, 
the  fact  weighs  heavily  against  him. 


THE   JUDGE  193 

Almost  anything  may  be  presented  for  the  consid- 
eration of  the  judge,  however  remote  its  connection 
with  the  crime  of  which  the  defendant  has  been 
convicted,  and  either  as  militating  for  or  against  the 
prisoner.  Affidavits,  letters,  newspaper  clippings 
and  memoranda  are  submitted  tending  to  show  that 
he  is  of  either  good  or  bad  character,  has  had  a  repu- 
table or  a  disreputable  past,  has  or  has  not  committed 
or  attempted  to  commit  other  crimes,  or  is  or  is  not 
likely  to  '* reform/'  Often  these  may  have  a  good 
deal  of  weight,  but  the  persons  who  present  them  are 
almost  never  sworn  or  placed  upon  the  witness-stand 
or  the  defendant  or  prosecutor  given  a  chance  to 
cross-examine  them  as  to  their  accuracy. 

The  mere  attitude  of  complainants,  obviously  an 
entirely  immaterial  matter,  is  also  often  a  consider- 
able factor  in  determining  how  the  prisoner  shall  be 
disposed  of.  If  they  are  vindictive  and  anxious  to 
**make  an  example''  of  the  offender  it  may  happen 
that  they  will  persuade  the  judge  honestly  to  believe 
that  a  heavy  sentence  should  be  inflicted,  whereas  if 
they  are  sorry  for  the  prisoner  and  his  family  and 
are  willing  to  ' '  give  him  another  chance, ' '  and  inter- 
cede strongly  for  him,  the  judge  may  *  *  suspend  sen- 
tence ' '  upon  the  same  man.  Now  the  attitude  of  the 
parties  wronged  is  largely  determined  by  the  char- 
acter and  disposition  of  the  parties  themselves,  and 
of  course  in  many  cases  has  no  relation  whatever  to 
the  real  rights  of  the  case.  For  example,  a  half- 
drunken  laborer  lacking  the  money  to  buy  liquor 
may  wander  into  an  area  and  cut  away  a  strip  of 
copper  water-spout  belonging  to  some  old  lady.  He 
sells  it  for  a  few  cents  and  then  is  arrested  and  is 
convicted  of  petty  larceny.     No  one  has  any  par- 


194         THE  PEISONER  AT  THE  BAR 

ticular  interest  in  the  case  and  the  old  lady  comes 
into  court  and  begs  for  the  defendant's  ^'parole.'' 
He  has  hitherto  led  a  decent  life  and  the  judge  lets 
him  go.  Now,  if  the  same  man,  instead  of  stealing 
a  piece  of  pipe  out  of  an  area,  finds  himself  in  the 
vicinity  of  a  freight  yard  and  cabbages  a  piece  of 
iron  belonging  to  a  railroad  company,  he  is  no 
sooner  convicted  than  the  attorneys  for  the  com- 
pany swarm  about  the  judge  demanding  that  *Hhis 
wholesale  pillage  of  corporation  property"  be  put 
an  end  to,  that  an  example  be  made  of  such  thieves, 
and  insisting  that  it  is  an  important  case  where  a 
severe  sentence  should  be  inflicted.  The  judge  can- 
not be  blamed  if  his  mind  is,  to  a  certain  extent, 
affected  by  the  representations  of  these  gentlemen 
and  he  may  easily  give  the  defendant  six  months 
or  a  year  in  the  penitentiary.  The  moral  guilt  of  the 
prisoner  is  precisely  the  same  and  so  will  be  the 
significance  of  his  punishment  so  far  as  its  serving 
as  a  deterrent  to  himself  or  to  others  is  concerned. 

Another  instance  is  where  a  young  clerk  in  a  bank- 
ing, express,  or  insurance  office  is  caught  pilfering. 
He  has,  to  be  sure,  violated  the  trust  reposed  in  him, 
but  if  the  officers  of  the  company  are  disposed  to 
intercede  in  his  behalf  and  express  the  belief  that  he 
**has  learned  his  lesson"  it  is  probable  that  they 
can  persuade  the  judge  to  give  the  boy  another 
chance,  whereas  if  their  attitude  were  otherwise  he 
would,  and  perhaps  very  properly,  be  sent  to  Elmira 
or  to  State's  prison.  It  thus,  in  many  cases,  lies 
within  the  power  of  the  lawyer  for  a  defendant,  if  he 
be  assiduous,  persuasive,  or  have  influence  which 
can  be  exerted  upon  the  complainant  in  the  case,  to 
lessen  materially  the  sentence  of  his  client,  who  with- 


THE  JUDGE  195 

out  his  services  would  perhaps  receive  the  maximum 
of  punishment.  The  poor  or  friendless  prisoner, 
who  cannot  pay  for  able  or  indefatigable  counsel, 
inevitably  suffers  in  consequence,  for  his  defence  to 
punishment  after  trial  cannot  be  adequately  pre- 
sented.   His  guilt  is  the  same. 

Another  matter,  frequently  entirely  fortuitous, 
which  yet  may  affect  the  question  of  punishment,  is 
the  fact  of  restitution.  Where  a  prisoner  has  been 
guilty  of  embezzlement  or  theft  and  afterwards  re- 
turns the  money  it  is  almost  inevitably  taken  into 
consideration  when  sentence  is  imposed.  Naturally 
it  is  apt  to  affect  the  attitude  of  the  complainant  in 
the  highest  degree.  Now,  if  the  offender  be  merely 
foolish,  he  very  probably  has  spent  the  money  he  has 
stolen  in  gambling  or  feasting,  while  if  he  be  shrewd 
and  cunning  he  has  laid  it  by  until  he  can  accumulate 
enough  to  go  to  South  America.  In  the  latter  case  he 
can  be  made  to  disgorge;  in  the  former  he  cannot, 
and  is  often  far  worse  off  when  he  comes  to  be  sen- 
tenced than  if  he  had  been  more  criminally  minded. 

From  what  has  been  said  the  reader  should  not  in- 
fer that  the  majority  of  sentences  are  excessive.  In 
point  of  fact  the  leniency  of  most  of  our  judges  is 
surprising,  and  when  they  err  it  is  invariably  upon 
the  side  of  mercy.*  The  sentences  actually  inflicted 
are  often  so  short  that  they  must  seem  to  the  average 
layman  almost  trivial,  and  the  number  of  cases  in 
which  sentence  is  "suspended"  and  the  offender 
paroled  in  the  custody  of  the  Prison  Association  is 
almost  seventy-five  per  cent  of  the  total  number  of 
first  convictions. 

The  reasons  for  this  leniency  are  varied.    Pri- 

*Cf.  "Light  Sentences  and  Pardons/'  by  Frederick  Bailsman,  39 
American  Law  Rev.  727. 


196         THE  PEISONER  AT  THE  BAR 

marily  it  is  because  the  judge  realizes  that  it  is  not 
so  much  the  length  of  imprisonment  as  the  fact  that 
the  defendant  is  imprisoned  at  all  that,  in  the  major- 
ity of  cases,  acts  as  a  deterrent  upon  that  particular 
offender  and  upon  those  to  whom  his  conviction  is 
calculated  to  serve  as  an  example ;  secondarily,  it  is 
due  to  the  sentimental  attitude  of  society  towards 
criminals  of  all  varieties ;  and,  lastly,  to  an  apprecia- 
tion of  the  unfortunate  inequality  of  punishment, 
and  the  difficulty  in  adequately  and  justly  determin- 
ing what  weight  should  be  given  to  hearsay  evidence 
as  to  the  convict's  past  history.  In  some  instances 
leniency  may  arise  from  other  and  less  creditable 
sources,  such  as  sheer  cowardice  in  defying  in- 
fluence, political  or  otherwise,  the  desire  to  curry 
popular  favor  in  the  hope  of  subsequent  preferment 
in  office,  or  possibly  from  the  hope  that  if  a  light 
sentence  is  inflicted  the  case  will  not  be  appealed 
and  the  conviction  reversed.  This  dread  of  reversal 
in  the  case  of  some  judges  amounts  almost  to 
hysteria,  and  there  are  well-known  instances  in 
which  judges  in  the  criminal  courts  have  stood 
heroically  by  the  district  attorney  and  the -People 
with  the  result  that  some  scoundrel  of  great  politi- 
cal influence  has  been  convicted,  and  have  then  com- 
pletely nullified  the  effect  of  their  good  conduct  by 
weakly  suspending  sentence  or  by  inflicting  one  so 
slight  as  to  arouse  the  amusement  and  contempt  of 
even  the  defendant  himself. 

The  ultimate  object  of  the  proper  administration 
of  criminal  justice  is  to  sustain  and  increase  the 
general  respect  for  law.  If  it  result  in  a  lessened 
regard  for  law  by  engendering  a  belief  that  its  offi- 
cers are  weak,  cowardly,  venal,  or  ineffective,  it  is  a 


THE   JUDGE  197 

failure.  The  adjuration  therefore  to  avoid  even  the 
appearance  of  evil  applies  strongly  to  all  members 
of  the  bench.  Nothing  conduces  more  to  lawlessness 
than  a  popular  impression  that  criminal  judges  are 
incapable,  **easy,''  or  are  subject  to  influence.  A 
judge  who,  it  is  supposed,  can  be  ** reached,*'  is 
an  incentive  to  crime.  Now  it  is  highly  improbable 
that  any  judge  is  ever  ** reached.''  Our  judges  are 
honorable  men.  But  once  let  an  impression  to  the 
contrary  get  abroad  among  criminals  and  the 
same  result  follows  as  if  the  judge  were  actually 
** crooked."  If  a  judge  is  supposed  to  be  amenable 
to  influence,  the  criminal  will  assume  that  his  own 
particular  pull  will  be  effective. 

As  an  illustration,  let  us  suppose  that  one  of  a 
band  or  *^gang"  of  young  toughs  has  been  appre- 
hended in  making  a  vicious  assault  which  might  well 
have  resulted  in  murder.  Perhaps  he  has  been  paid 
fifty  or  a  hundred  dollars  to  ** knock  out"  (kill)  his 
victim.  He  receives  a  fair  trial  and  is  convicted.  He 
deserves  all  he  can  get — ten  years.  Instead  he  is 
sent  to  the  Elmira  Eeformatory.  The  rest  of  the 
gang,  with  their  hangers-on,  amounting  in  number 
very  likely  to  forty  or  fifty  youths  and  men,  are 
immediately  convinced  either  that  they  have  been 
able  to  influence  the  judge  through  their  political 
friends  or  that  he  and  his  associates  are  ^^easy." 
*  *  Going  to  Elmira ' '  is  nothing  in  their  eyes ;  and  the 
conviction  of  their  comrade  results  in  no  deterrent 
effect  upon  them  whatever.  He  becomes  a  clever 
hero.  Any  one  of  them  is  ready  to  undertake  the 
same  job  at  the  same  price.  If  his  conviction  be 
reversed  and  he  be  set  at  liberty  they  conclude  that 
in  addition  the  authorities  are  incapable  and  that 


198         THE  PEISONER  AT  THE  BAR 

they  can  **beat  the  case''  any  time  they  happen  to 
be  caught.  The  effect  of  an  important  conviction 
reversed  in  its  effect  upon  lawless  sentiment  cannot 
be  overestimated. 

A  sense  of  judicial  propriety  is  one  of  the  most  to 
be  desired  qualities  in  a  judge.  The  slightest  suspi- 
cion that  he  is  giving  ear  to  voices  from  behind  the 
dais  nullifies  his  effectiveness  and  destroys  popular 
respect  for  the  law  which  he  may  perhaps  in  fact 
enforce  with  ability  and  justice.  The  sight  of  a  poli- 
tician emerging  from  a  judge's  chambers  may  base- 
lessly  destroy  the  latter 's  influence  for  good.  Actual 
infractions  of  judicial  propriety  should  be  visited 
with  the  utmost  severity.  Prescott  speaks  of  the 
jealousy  of  the  Aztecs  of  the  integrity  of  their  bench : 

**To  receive  presents  or  a  bribe,  to  be  guilty  of 
collusion  in  any  way  with  a  suitor,  was  punished  in 
a  judge  with  death.  Who  or  what  tribunal  decided 
as  to  his  guilt  does  not  appear.  In  Tezcuco  this  was 
done  by  the  rest  of  the  court.  But  the  king  presided 
over  that  body.  The  Tezcucan  prince,  Nezahua 
Epilli,  who  rarely  tempered  justice  with  mercy,  put 
one  judge  to  death  for  taking  a  bribe,  and  another 
for  determining  suits  in  his  own  house, — a  capital 
offence,  also,  by  law."  Perhaps  this  was  going  too 
far. 

**The  judges  of  the  higher  tribunals,"  he  contin- 
ues, **were  maintained  from  the  produce  of  a  part 
of  the  crown  lands,  reserved  for  the  purpose.  They, 
as  well  as  the  supreme  judge,  held  their  offices  for 
life.  The  proceedings  in  the  courts  were  conducted 
with  decency  and  order.  The  judges  wore  an  appro- 
priate dress,  and  attended  to  business  both  parts  of 
the  day,  dining  always,  for  the  sake  of  despatch,  in 


THE   JUDGE  199 

an  apartment  of  the  same  building  where  they  held 
their  session;  a  method  of  proceeding  much  com- 
mended by  the  Spanish  chroniclers,  to  whom  de- 
spatch was  not  very  familiar  in  their  own  tribunals. ' ' 

We  can  appreciate  to  a  considerable  extent  the 
emotions  of  the  Spanish  chroniclers.  Judges  often 
dine  together,  but  not  always  for  the  sake  of  de- 
spatch. The  writer  has  no  hesitation  in  affirming 
that  disregard  of  the  comfort  and  time  of  jurors 
and  witnesses  is  the  most  obvious  fault  of  certain 
of  them.  Some  judges  occasionally  adjourn  court 
from  one  until  two  and  make  their  own  appearance 
any  time  before  three.  It  is  small  consolation  to  a 
juror  nervously  distracted  by  waiting  to  find  that 
the  judge  expects  conscientiously  to  make  up  the 
time  thus  lost  by  keeping  the  jury  at  work  until 
five.  In  most  instances,  however,  the  judges  are 
more  punctual  and  business-like  than  the  jurors  and 
counsel  who  appear  before  them. 

Some  judges  occasionally  seem  to  feel  that  the 
benefit  of  the  ^'reasonable  doubf  to  which  a  pris- 
oner is  entitled  before  the  jury  remains  with  and 
should  be  given  to  him  even  after  conviction.  This 
sometimes  manifests  itself  in  the  extraordinary  phe- 
nomenon of  a  defendant  who  has  stood  trial  and 
perjured  himself  in  his  own  behalf  receiving  a  less 
severe  sentence  than  his  co-defendant  who  has 
pleaded  guilty  and  saved  the  county  the  expense  and 
labor  of  a  trial.  There  was  once  a  case  where  this 
occurred  in  which  two  of  the  perpetrators  of  a  brutal 
robbery  pleaded  guilty  and  received  seven  years 
apiece,  while  their  **  side-partner, "  after  being  con- 
victed before  a  jury,  was  given  five  years  by  another 
judge.    It  was  not  in  this  case,  but  an  earlier  one, 


200         THE  PRISONER  AT  THE  BAR 

in  which  a  judge,  obviously  on  the  theory  of  rea- 
sonable doubt,  addressed  the  prisoner  substantially 
as  follows: 

**  Young  man,  you  have  been  convicted  by  a  jury 
of  your  peers  after  a  fair  trial.  Your  offence  is  a 
heinous  one.  You  took  the  stand  and  perjured  your- 
self, asserting  your  innocence.  I  might  inflict  a 
severe  punishment.  Still,  under  all  the  circum- 
stances, and  in  view  of  your  claim  that  you  are  not 
guilty,  I  will  suspend  sentence.'' 

The  reader  should  not  and  will  not  assume  that 
these  instances  of  unequal  punishment  and  erratic 
clemency  are  set  forth  for  the  purpose  of  illustrating 
the  usual  course  of  justice.  They  are  the  exception, 
not  the  rule.  That  they  sometimes  occur  cannot  be 
denied.  They  should  never  occur.  They  are  proba- 
bly due  frequently  to  utter  weariness  on  the  part  of 
the  judge,  coupled  with  the  realization  that  it  is 
sometimes  practically  a  human  impossibility  to  get 
at  the  true  inwardness  of  a  case  or  know  what  to  do. 
Seemingly  arbitrary  sentences  on  close  observation 
are  sometimes  found  to  be  erratic  only  in  the  lan- 
guage in  which  they  are  phrased, — not  in  the  amount 
of  the  punishment.  The  table  on  the  opposite  page 
shows,  the  writer  believes,  that  the  average  sentences 
imposed  in  the  various  classes  of  crime  bear  a  re- 
markably sound  relation  to  one  another. 

Could,  however,  the  separate  sentences  be  ex- 
amined, an  astonishing  and  lamentable  inequality 
would  be  discovered, — an  inequality  which  is  an 
actual  injustice,  but  an  injustice  which  cannot  be 
prevented  under  our  present  system.  Unless  all 
offences  should  be  tried  before  a  single  judge  of 
unvarying  disposition  and  physical  condition  abso- 


THE  JUDGE 


201 


lute  equality  could  not  be  secured.    Where  they 
are  tried  before  four  or  five  different  judges  there 


Classified  list  of  the  number  of  persons  convicted,  and  the  average  term 

imposed  for  each  particular  crime  during  the  year  1907  in 

New  York  County. 

MALES 


Offence 


Abduction 

Abandonment 

Assault,  1st  degree 

"        2d  degree 

Bigamy 

Bribery 

Burglary,  1st  degree 

"        2d  degree 

"        3d  degree 

Blackmail 

Carrying  burglar's  tools 

Carrying  concealed  weapons. . 

Election  law 

Extortion 

Felony  (N.C.) 

Forgery,  1st  degree 

"      2d  degree 

"      3d  degree 

Grand  larceny,  1st  degree 

"       2d  degree.... 

Kidnapping 

Maiming 

Manslaughter,  1st  degree 

"  2d  degree 

Murder,  1st  degree 

"        2d  degree 

Attempted  murder,  1st  degree 

Perjury 

Rape,  1st  degree 

"      2d  degree 

Receiving  stolen  goods 

Robbery,  1st  degree 

"        2d  degree 

"        3d  degree 

Seduction 

Sodomy 

Total 


No. 


4 
2 
4 

48 
6 
1 
5 

30 
120 
4 
6 
9 
8 
6 
2 
2 

13 
3 

38 

146 

3 

1 

11 
3 
3 

13 
1 
2 
1 

10 

11 

23 
6 
1 
1 
3 


aogkegate 

Term  of 
Sentences 


Years      Months 


32 

4 

27 

161 

20 

3 

94 

187 

385 

17 

23 

34 

26 

14 

12 

10 

63 

10 

209 

478 

44 

2 

165 

30 


1 
7 

10 
6 
7 
5 
2 
6 
4 

i 

6 

6 
2 
3 

8 


Average  Term 
Each  Person 


Years  Months 


8 
2 
6 
3 
3 
3 

18 
6 
3 
4 
3 
3 
3 
2 
6 
5 
4 
3 
5 
3 

14 
2 

15 

10 


9 
4 
6 
6 

11 
3 
2 
4 

11 
9 
3 
5 

3 
10 
5 
6 
3 
8 


Sentenced  to  be  executed 
20 


260 
24 
19 
18 
80 
42 

245 

59 

5 

4 

29 


550 


2,845 


See  note 

6 

5 

6 

'7 
2 
6 
9 
1 


24 
9 

18 
8 
3 

10 
9 
5 
4 
9 


10 
8 

10 
6 
9 
8 


Note. — In  preparing  the  above  table,  the  maximum  terms  of  all  indeterminate 
sentences  are  computed,  except  in  convictions  of  murder  in  the  second  decree,  in 
which  the  minimum  terms  of  twenty  years  are  used.    (Section  187,  Penal  Code.) 


202        THE    PEISONER   AT    THE   BAR 


STATE  PRISON— FEMALES 


Offence 

No. 

Term  of 
Sentence 

Average  Term 
OF  Sentence 

Years 

Months 

Years 

Months 

Assault,  2d  degree 

5 

13 

40 

23 

7 

13 

5 

3 

10 
3 
8 
5 
6 

6 

2 
5 
3 
7 
13 
5 
3 

9 

Grand  larceny,  1st  degree 

2d  degree 

Manslaughter,  1st  degree 

2d  degree 

Receiving  stolen  goods 

Robbery,  1st  degree 

9 
4 
5 
6 

6 

Total 

23 

107 

2 

4 

8 

will  be  four  or  five  different  and  constantly  varying 
factors  which  must  be  multiplied  into  the  constants 
shown  by  the  record.  Some  judges  regard  certain 
crimes  as  more  detestable  than  others  do,  and  some 
judges  see  greater  possibilities  of  reformation  in  any 
given  criminal  than  others.  Some  are  more  affected 
by  the  immorality,  as  distinguished  from  the  illegal- 
ity, of  a  given  crime  than  others,  and  certain  judges 
will  take  into  consideration  features  of  the  case  that 
would  be  entirely  disregarded  by  their  associates. 

This  divergency  of  mental  attitude  accounts  in  part 
for  the  great  curse  of  the  inequality  of  sentences. 
Two  cases  suggest  themselves  vividly  as  examples. 

A  conductor  on  a  surface  car  took  the  place  of  the 
motorman  and  carelessly  ran  into  a  wagon,  throw- 
ing out  the  driver,  who  died  in  consequence.  He  was 
convicted  of  manslaughter  in  the  second  degree  and 
sentenced  to  ten  years  in  State's  prison. 

Another  defendant  who  had  killed  a  woman  by 
cutting  her  throat  and  hacking  her  up  with  a  razor 
was  convicted  of  the  first  degree  of  the  same  crime 
and  sentenced  to  the  Elmira  Reformatory.  Both 
defendants  were  of  approximately  the  same  age.    In 


THE   JUDGE  203 

each  case  the  particular  sentence  seemed  just  and 
fair  to  the  judge  who  presided  at  the  trial.  It  was 
conscientiously  imposed.  Yet  the  thing  speaks  for 
itself. 

It  has  sometimes  been  suggested  that  all  sentences 
should  be  imposed  by  all  the  judges  sitting  en  banc. 
While  this  would  entail  great  labor  and  expense  it 
would  undoubtedly,  if  it  were  practicable,  do  much 
to  obviate  the  present  unfortunate  condition.  As- 
suming that  four  judges  composed  this  sentencing 
board,  the  vote  of  the  justice  who  had  presided  at 
the  trial  might,  by  virtue  of  his  greater  familiarity 
with  the  facts,  be  given  a  weight  equal  to  that  of  the 
other  three  combined.  Had  the  two  sentences  just 
named  been  imposed  by  such  a  board  it  is  far  from 
probable  that  they  would  have  been  inflicted  in  the 
same  terms. 

An  effort  has  been  made  in  the  preceding  pages  to 
set  forth  some  of  the  failings  of  criminal  justice  on 
the  part  of  the  court  which  seem  open  to  honest 
criticism.  The  members  of  the  bench  themselves 
would  be  the  last  to  minimize  the  injustice  of  the 
inequality  of  sentences  which  under  our  present  sys- 
tem seems  inevitable,  and  are  continually  endeavor- 
ing to  remedy  it  so  far  as  possible.  They  also  recog- 
nize the  fact  that  it  is  often  difficult,  if  not  out  of  the 
question,  to  preserve  in  the  face  of  overwhelming 
evidence  an  imperturbable  serenity  of  demeanor 
when  the  fact  of  the  defendant 's  guilt  is  clear  and  the 
details  of  his  crime  are  revolting  to  every  moral 
sense,  and  they  are  equally  ready  to  acknowledge 
that  on  occasion  they  may  inadvertently  disclose 
their  impression  that  while  they  may  ^*let  a  case  go 
to  the  jury,''  the  defendant  should  be  acquitted. 


204         THE  PRISONEE  AT  THE  BAR 

Judges  are,  after  all,  but  men,  and  to  err  is  human. 
But  there  is  hardly  a  judge  upon  the  bench  who  does 
not  conscientiously  strive  to  perform  his  duties  in 
such  a  way  that  justice  may  be  secured  in  the  man- 
ner provided  by  the  Constitution, — ^by  leaving  the 
jury  untrammelled  in  their  function  of  determining 
upon  the  sworn  evidence  in  the  case  the  guilt  or  inno- 
cence of  the  defendant.  Finally  it  should  be  said 
that  it  is  not  the  weak  but  the  strong  judge  that  is 
most  apt  to  transgress  in  this  direction,  and  that  it 
is  the  strong  judge  who  is  most  likely  to  serve  the 
best  interests  of  the  community.  For  the  weak 
judge  there  is  no  place  in  the  administration  of 
criminal  justice.  His  presence  upon  the  bench  is  an 
incentive  to  crime  and  a  reproach  to  his  fellows. 


CHAPTER   XI 
THE  JURY 

Is  trial  by  jury  successful  in  criminal  cases  ?  Cer- 
tainly it  is  popularly  so  regarded.  Even  lawyers 
and  prosecutors  will  usually  agree  that  it  "works 
substantial  justice,"  but  tbis  does  not  answer  the 
question.  In  about  tbree  cases  out  of  five  "  Judge 
Lynch  "  himself  works  "  substantial  justice."  The 
function  of  the  jury  is  not  to  "  work  justice  "  at  all, 
but  to  decide  a  limited  question  of  fact.  They  are 
there  for  the  purpose  of  determining  the  issue  with- 
out prejudice  on  the  one  hand  or  sympathy  upon  the 
other,  and  having  no  regard  for  the  consequences  of 
their  verdict;  they  must  accept  unquestioningly  the 
law  from  the  judge  upon  every  point  and  base  their 
conclusions  solely  upon  the  sworn  evidence  in  the 
case.  This  they  swear  that  they  will  do.  Yet  they 
do  not.  Why?  Is  it  want  of  intelligence,  lack  of  re- 
gard for  law,  or  vital  misconception  of  their  func- 
tion? 

Certainly  it  is  not  from  want  of  intelligence. 
There  can  be  no  question  as  to  the  capability  of  the 
ordinary  juryman  to  perform  his  duties.  The  inde- 
pendent American  is  singularly  adapted  to  just  this 
form  of  investigation.  If  the  English  be  "  a  nation 
of  shopkeepers,"  we  are  a  nation  of  natural  cross- 
examiners.  You  will  find  fully  as  good  verbal  fencing 
in  a  New  England  corner  grocery  store  about  mail 
time  as  you  will  in  most  courts  of  justice.  But  the 
very  innate  capacity  of  the  native  American  to  per- 

205 


206         THE  PEISONER  AT  THE  BAR 

ceive  tlie  tnith  and  get  to  the  bottom  of  things,  leads 
him  to  believe  that  he  knows  equally  well,  if  not  bet- 
ter than  the  judge,  what  ought  to  be  done  about  it 
and  what  punishment,  if  any,  should  be  inflicted  upon 
the  defendant  under  the  circumstances.  It  is  not  that 
our  jurors  are  incapable  or  uninterested,  but,  para- 
doxical as  it  may  seem,  that  they  are  too  capable  and 
too  interested.  They  want  to  be  not  only  jurors,  but 
district  attorney,  counsel  for  the  defendant,  expert 
witness,  and  judge  into  the  bargain. 

Your  shopkeeper  in  England  makes  a  less  intelli- 
gent, but  a  far  more  satisfactory  juror.  There  they 
will  empanel  a  jury  in  a  few  moments  in  a  capital 
case,  and  so  deeply  implanted  in  the  bosom  of  each 
juryman  is  a  respect  for  the  law  as  such  and  an  in- 
herited reverence  for  the  judiciary,  which  its  uni- 
formly high  character  has  done  so  much  to  foster, 
that,  provided  the  facts  are  sufficiently  established, 
the  sex  of  the  defendant,  the  condition  of  his  or  her 
family,  the  character  of  the  motive  for  the  act,  will 
not  be  the  subject  of  discussion  or  even  of  considera- 
tion in  determining  the  verdict.  It  is  enough  that 
they  are  sworn  to  decide  the  facts  and  the  facts  alone. 
They  are  told  by  the  judge  what  evidence  they  may 
consider,  and  what  facts  they  may  not  consider,  and 
did  they  not  obey  his  instructions  they  would  receive 
the  severe  censure  of  the  public  and  the  press. 

There  is  an  historical  reason  for  this.  In  1666, 
when  a  jury  found  a  verdict  of  manslaughter  after 
having  been  instructed  that  the  evidence  showed  that 
it  was  murder,  Kelyng,  C.  J.,  promptly  fined  them  five 
pounds  apiece.  On  petition,  he  reduced  it  to  forty 
shillings,  "which  they  all  paid."  In  1667  he  fined 
eleven  of  the  grand  jury  twenty  pounds  apiece  for  re- 


THE  JUEY  207 

fusing  to  indict  for  murder.  The  judges  of  the  King's 
Bench  said  he  was  quite  right,  adding,  "  and  where  a 
petty  juror,  contrary  to  directions  of  the  court,  will 
find  a  murder  manslaughter,  .  .  .  yet  the  court  will 
fine  them  '*  (King  vs,  Windham,  2  Keble,  180).  For 
centuries  it  was  the  common  practice  to  punish 
severely  by  imprisonment,  fine,  and  attainder  juries 
who  refused  to  convict  on  what  appeared  to  the  court 
to  be  sufiicient  evidence.  Perhaps  Throckmorton's 
case  in  1554,  when  the  jury  acquitted  the  defendant 
of  treason,  is  the  most  famous  illustration  of  this. 
The  court  committed  the  jury  to  prison,  eight  being 
confined  from  April  17  to  December  12,  and  on  their 
discharge  fined  them,  some  sixty  and  some  two  hun- 
dred and  twenty  pounds  apiece.  The  reasoning  un- 
der the  circumstances  was  obvious.  If  a  jury  found 
a  man  guilty  improperly,  he  could  be  pardoned,  but 
"  if,  having  pregnant  evidence,  nevertheless,  the 
twelve  do  acquit  the  malefactor,  which  they  will  do 
sometime  .  .  .  the  prisoner  escapeth.  .  .  ."  It  is  re- 
freshing to  observe  that  even  English  juries  "  will  do 
[this]  sometime."  All  this  naturally  created,  as  it 
was  designed  to  create,  a  tremendous  regard  for 
the  judge  and  his  instructions. 

There  is  at  the  present  time  little  of  this  whole- 
some regard  for  law  in  America.  The  jury  realize 
that  the  judge's  elevation  to  the  bench  is  often  a  mat- 
ter of  politics  alone,  and  sometimes  have  compara- 
tively little  respect  for  his  character,  learning,  or 
ability.  They  frequently  feel  by  no  means  confident 
that  the  punishment  will  fit  the  crime,  and  are  anx- 
ious, so  far  as  they  can,  to  dispose  of  the  case  for 
themselves.  For  example,  in  one  case  where  three 
defendants  were  found  guilty  of  stealing  in  compaAy 


208         THE  PEISONEE  AT  THE  BAR 

a  single  article  of  value,  the  jury  rendered  a  verdict 
of  grand  larceny  in  the  first  degree  against  one, 
grand  larceny  in  the  second  degree  against  another, 
and  petty  larceny  against  the  third.  They  did  this 
because  of  the  varying  ages  of  the  defendants,  but 
in  so  doing  obviously  violated  their  oaths  and 
usurped  the  functions  of  the  judge.  Very  likely  "  sub- 
stantial justice  "  was  accomplished. 

There  are  hundreds  of  jurors  who,  having  in  all 
honesty  taken  the  oath  to  "  a  true  verdict  find,"  will, 
once  in  the  jury-room,  frankly  turn  to  their  fellows 
and  exclaim :  "  Oh,  let  him  go !  He's  only  a  kid. 
Give  him  another  chance !  "  "  Substantial  justice," 
again  at  the  expense  of  our  regard  for  law. 

As  an  example  of  what  may  occur,  the  case  of 
Rosa  di  Pietro,  tried  for  murder  before  the  Recorder, 
in  December,  1904,  is  illuminating.  The  defendant 
was  a  young  Italian  woman  of  good  repute  charged 
with  shooting  and  killing  her  brother-in-law,  who, 
the  evidence  clearly  showed,  had  endeavored  to  per- 
suade her  to  yield  to  his  desires.  She  claimed  to 
have  shot  him  in  self-defence.  Her  story  was  so  ob- 
viously a  fabrication  that  no  jury  could  have  believed 
her,  and  must  have  found  (if  they  had  considered  the 
matter  at  all)  that  she  pursued  her  would-be  seducer 
down  the  stairs  and  shot  him  in  a  dark  hallway,  as 
he  was  leaving  the  building.  A  "  special "  jury  of 
perfectly  intelligent  men  promptly  acquitted  her. 
The  writer  presumes  that  after  this  all  the  Italian 
residents  will  get  their  wives  to  do  their  killing  for 
them. 

In  a  well-known  case  the  jury  found  the  defendant 
guilty  of  manslaughter,  instead  of  murder,  because 
one  of  their  number  had  read  that  the  prisoner  had 


THE  JUEY 

been  a  "Eough  Eider"  in  the  Cuban  campaign. 
After  they  had  returned  their  verdict  they  learned 
that  he  had  been  nothing  of  the  kind. 

The  action  of  the  New  York  County  jury  in  a  crim- 
inal case  is  right  as  to  the  defendant's  guilt  or  inno- 
cence about  four  times  out  of  five,  but  less  frequently 
as  to  the  appropriate  degree  of  crime.*  The  per- 
centage of  proper  verdicts  differs,  of  course,  in  dif- 
ferent varieties  of  crime.  In  cases  of  common  felony, 
such  as  larceny,  burglary,  rape,  robbery,  arson, 
forgery,  etc.,  it  is  usually  high;  in  homicides  and 
gambling  much  lower ;  and  in  commercial  frauds  and 
liquor-tax  cases  smaller  still,  the  number  of  convic- 
tions being  inconsiderable.  Making  due  allowance 
for  the  unconscious  prejudices,  sympathies,  and  idio- 
syncrasies of  mankind,  we  have  still,  as  citizens,  a 
right  to  demand  a  far  higher  degree  of  accuracy  in 
the  verdicts  of  our  juries — to  expect  the  murderer  to 
be  found  guilty  of  murder  and  the  thief  to  be  stig- 
matized as  a  thief.  What  is  the  explanation  for 
this? 

The  fundamental  reason  for  the  arbitrary  char- 
acter of  the  verdicts  of  our  juries  lies  not  in  our  lack 
of  intelligence  as  a  nation,  but  in  our  small  regard 
for  human  life,  our  low  standard  of  commercial  hon- 
esty, our  hypocrisy  in  legislation,  our  consequent 
lack  of  respect  for  law,  and  the  general  misapprehen- 
sion that  the  function  of  the  jury  is  to  render  "  sub- 
stantial justice " — a  misapprehension  fostered  by 
public  sentiment,  the  press,  and  even  in  some  cases 
by  the  bench  itself,  to  the  complete  abandonment  of 

*  This  estimate  does  not  apply  to  the  actions  of  juries  outside 
of  New  York  County.  In  other  cities  and  in  other  states,  particu- 
larly in  rural  districts,  the  percentage  of  convictions  is  often  shock- 
ingly small. 


210         THE  PEISONEE  AT  THE  BAR 

the  literal  interpretation  of  the  juror^s  oath  of 
office. 

The  writer  has  heard  judges  from  the  bench  con- 
gratulate juries  upon  having  rendered  a  '^  merciful 
verdict  " !  They  are  popularly  expected  "  to  temper 
justice  with  mercy,"  "  exercise  a  wise  discretion," 
and  "  to  be  moved  to  magnanimity."  But  the  jurors 
who  satisfy  their  emotions  at  the  expense  of  their 
honesty,  and  the  judge  who  countenances  the  per- 
formance, are  worse  law-breakers  than  the  defend- 
ant himself. 

We  carry  upon  our  statute  books  laws  which  we 
have  no  intention  of  enforcing,  and  which,  in  our 
present  state  of  development,  are  actually  unenforce- 
able. Even  law-abiding,  law-loving,  and  (ordinarily) 
conscientious  jurors  will  become  lawless  when  com- 
pelled to  sit  in  a  case  of  this  character.  Thus  while 
the  three  judges  of  Special  Sessions  find  guilty  some 
sixty  per  cent  of  those  brought  before  them  for  vio- 
lations of  various  phases  of  the  liquor-tax  law,  a 
conviction  by  a  jury  in  the  General  Sessions  is  prac- 
tically unheard  of.  The  grand  jury  have  now  reached 
the  point  where  they  practically  refuse  to  indict  at 
all  in  liquor-tax  cases.*     Just  as  long  as  we  have 

*  The  following  figures  may  be  of  interest  to  those  readers  who  are 
interested  in  the  question  of  amending  the  laws  governing  the  sale 
of  liquor: 

In  the  year  1907,  out  of  a  total  of  1,237  cases  which  came  before 
the  Court  of  Special  Sessions,  there  were  334  convictions,  7  pleas  of 
guilty,  223  acquittals,  18  discharges  and  116  transfers  to  the  General  Ses- 
sions. During  the  last  eight  years,  out  of  a  total  of  7,416  cases,  there  were 
3,129  convictions,  244  pleas  of  guilty,  2,143  acquittals,  395  discharges,  361 
demurrers  allowed  and  1,144  cases  transferred,  on  the  defendants'  mo- 
tion, to  General  Sessions,  to  be  tried  under  indictment.  During  this 
period,  very  nearly  half  the  cases  have  resulted  in  convictions. 

These  cases  were  tried,  as  the  reader  is  aware,  by  a  bench  of  three 
judges,  who  decide  both  law  and  fact.  Compare  this  record  with  the 
result  of  91  transfers,  taken  as  illustrative,  from  the  Special  to  the 
General  Sessions  in  1905.     Of  course,  each  case  had  to  be  taken  first 


THE  JURY  211 

hypocrisy  in  religion,  in  business,  and  in  legislation, 
so  long  shall  we  have  hypocrisy  in  our  courts  of 
justice. 

Of  course,  as  we  live  in  an  age  when  violence  is 
found  inconvenient  and  annoying,  your  jury  natu- 
rally condemns  by  its  verdict  crimes  of  a  violent 
character,  and  will  make  but  short  work  of  highway- 
man and  thug.  Burglars  are  unpopular  both  with 
the  public  and  with  the  juror ;  and  it  needs  no  burst 
of  rhetoric  to  induce  a  jury  to  find  a  verdict  against 
a  "  firebug  "  or  a  "  cadet."  But  once  step  into  that 
class  of  cases,  the  subject  of  which  is  commercial 
fraud,  and  the  jury  look  upon  the  prosecution  with 

before  the  grand  jury.  Eighty-four  of  these  cases  were  summarily  dis- 
missed by  that  body.  In  the  remaining  seven  instances,  indictments 
were  secured.  Four  of  these  seven  defendants  pleaded  guilty,  two  were 
acquitted  by  the  jury,  one  was  discharged  on  his  own  recognizance  and 
none  were  convicted.  In  other  words,  out  of  the  whole  bunch  of  trans- 
fers, less  than  four  per  cent  of  the  defendants  were  convicted,  as  against 
nearly  fifty  per  cent  of  convictions  in  the  Special  Sessions,  in  all  liquor- 
tax  cases  in  the  last  eight  years.  In  the  same  period,  out  of  a  total  of 
1,241  cases  presented  to  the  grand  jury,  987  were  dismissed  by  that 
body.  Of  the  balance,  viz.,  254  in  which  indictments  were  secured,  25 
pleaded  guilty,  36  were  discharged  on  their  own  recognizances,  in  12 
cases  the  bail  was  forfeited,  and  of  the  181  cases  which  actually  were 
tried  before  juries,  165  defendants  were  acquitted  and  16  were  convicted. 

In  1906,  out  of  85  cases  transferred,  79  were  dismissed,  and  of  the  re- 
maining six,  5  defendants  were  acquitted  and  1  was  discharged.  In  1907 
there  were  98  transferred  and  all  were  dismissed  by  the  grand  jury. 

The  significance  of  these  figures  becomes  evident  when  it  is  realized 
that  the  defendants  whose  cases  are  thus  transferred  are  those  who  are 
the  actual  holders  of  licenses.  They  can  aiford  to  pay  for  the  services 
of  counsel,  and  their  conviction  is  of  vastly  more  importance  to  the 
community  than  that  of  their  hirelings  who  actually  sell  the  liquor  over 
the  bar.  The  barkeeper  who  violates  the  law  and  is  caught,  comes  to 
trial  in  the  Special  Sessions,  either  pleads  guilty  or  is  convicted,  and 
receives  a  fine  which  his  employer  promptly  pays.  The  owner  of  the 
saloon  thereupon  discharges  the  defendant  from  his  service  and  secures 
another  barkeeper.  This  process  can  be  continued  indefinitely.  But 
when  the  owner  himself  is  caught  and  convicted,  he  is  either  driven  out 
of  business  or  has  got  to  operate  under  another  name.  These  are  the 
men  who  apply  for  and  are  apparently  able  to  secure  transfers  of  their 
cases  to  the  General  Sessions,  although  any  judge  granting  such  motions 
is,  or,  at  least,  should  be,  aware  of  what  the  practical  result  of  his  action 
will  be.  The  transfer  of  a  liquor-tax  case  upon  the  order  of  the  judge 
sitting  in  Part  I  of  the  General  Sessions  is  practically  tantamount  to  a 
dismissal  of  it. 


212         THE  PRISONER  AT  THE  BAR 

averted  eye.  Just  so  long  as  dishonesty  of  one  kind 
or  another  is  openly  countenanced  in  business,  just  so 
long  it  will  be  practically  impossible,  except  under 
unusual  conditions,  to  convict  the  fraudulent  bank- 
rupt or  the  retailer  who  has  secured  goods  and  credit 
upon  false  representations.  Mayhap  there  is  upon 
the  jury  some  tradesman  who  has  *^ padded"  his  own 
credit  statement;  some  one  who  has  placed  a  ficti- 
tious valuation  on  his  stock,  or  has  told  alluring  but 
unsubstantial  stories  as  to  his  *^ orders  on  hand," 
**cash  in  bank,"  and  *^ bills  receivable."  What 
chance  under  those  circumstances  of  a  conviction? 

"  The  jury,  passing  on  the  prisoner's  life, 
May  have  in  the  sworn  twelve  a  thief  or  two 
Guiltier  than  him  they  try." 

''"Why,"  says  a  juror,  *^here  they  are  trying  to 
convict  this  fellow  Einstein  of  what  everybody  does 
every  day  in  the  year.  Rubbish!  Am  1  a  thief?  1 
don't  have  any  criminal  intent.  He  was  just  tryin' 
to  boost  his  assets  a  little.  He 's  no  criminal. ' '  And 
out  he  goes  to  the  jury-room  and  persuades  the  other 
eleven  that  the  defendant  is  no  worse  than  every- 
body. Of  course,  everybody  isn't  a  thief.  The  syllo- 
gism is  irrefutable. 

**I  suppose  you  didn't  believe  that  Mr.  Einstein 
made  those  false  statements?"  says  the  writer,  ap- 
proaching him  as  he  steps  into  the  corridor.  The 
juror  pauses  in  lighting  his  cigar. 

''Sure,  he  made  'em!"  he  remarks.  **0f  course 
he  made  'em!  But,  H — I,  he's  no  criminal!"  This 
is  an  actual  experience. 

Our  distaste  for  physical  violence  has  had  a  rather 
paradoxical  result  so  far  as  the  jury  is  concerned, 


THE   JURY  213 

for  it  appears  to  be  coupled  with  a  small  (and  what 
seems  to  be  a  decreasing)  regard  for  human  life. 
Verdicts  of  murder  in  the  first  degree  are  exceed- 
ingly rare,  and  it  requires  a  crime  of  a  peculiarly- 
atrocious  character  to  induce  the  jury  to  send  the 
defendant  to  the  electric  chair.  This  is  due  in  part 
to  cowardice  and  in  part  to  the  misconception  of 
their  function  already  dwelt  upon,  since  in  almost  all 
murder  cases  the  jury  regard  themselves  as  fixing 
the  penalty.  Inasmuch  as  most  persons  who  meet 
death  from  violence  are  themselves  of  violent  char- 
acter, the  jury  frequently  seems  to  believe  that  the 
defendant  is  entitled  to  a  certain  amount  of  consider- 
ation for  ridding  the  community  of  his  victim,  and 
this  often  finds  joyful  expression  in  a  verdict  of 
manslaughter. 

Totally  distinct,  however,  from  this  trifling  with 
justice,  whether  it  be  wilful  or  voluntary,  is  the 
unconscious  bias  of  each  member  of  the  human  fam- 
ily due  to  race,  religion,  education,  and  character. 
Hence  jurors  are  examined  with  an  elaborate  care 
and  minuteness  of  investigation  which  in  practice  is 
often  shown  to  be  ridiculous.  In  fact  certain  max- 
ims having  almost  the  force  of  legal  doctrines  have 
grown  up  about  the  selection  of  a  jury.  A  defend- 
ant's counsel  will  invariably  challenge  an  Irishman 
if  his  client  be  a  negro,  and  vice  versa.  This  is  like- 
wise apt  to  be  the  case  if  the  client  be  an  Italian. 
Talesmen  with  wives  and  children  are  generally  sup- 
posed to  be  more  susceptible  to  arguments  directed 
to  their  sympathies.  Hebrews  are  presumed  to  make 
particularly  undesirable  jurors  for  the  defence 
where  the  crime  charged  is  one  of  violence  or  arson, 
and  are  likewise  usually  challenged  when  the  defence 


214         THE  PEISONER  AT  THE  BAE 

is  self-defence.  Old  men  are  popularly  supposed 
to  make  indulgent  jurors,  although  the  writer's  own 
experience  is  to  the  contrary,  and  he  has  noticed  that 
persons  with  long,  drooping  mustaches  are  invaria- 
bly excused.  Neither  side  as  a  rule  cares  for  mis- 
sionaries or  persons  engaged  in  philanthropic  enter- 
prises, since  the  prosecutor  feels  instinctively  that 
their  eleemosynary  tendencies  will  extend  to  the 
prisoner,  while  the  defence  has  a  presentiment  that 
they  will  lead  him  to  favor  the  damaged  complainant. 
Writers,  editors,  and  publishers  are  generally  ex- 
cused by  the  defence  as  too  intelligent,  i.e.,  too  prone 
to  theoretic  arguments  as  distinguished  from  a 
*^ broad  view,''  which  from  the  prisoner's  standpoint 
means  one  including  every  sympathetic  reason  that 
can  be  suggested.  Artists  are  distrusted  by  prose- 
cutors as  romantic  and  imaginative.  Butchers, 
coffin-makers,  sextons,  grave-diggers,  undertakers, 
and  dealers  in  electrical  supplies  are  invariably  ex- 
cused for  obvious  reasons  by  the  defendant  in  homi- 
cide cases.  Liquor  dealers  are  believed  to  be  prone  to 
take  a  lenient  view  of  the  shortcomings  of  humanity 
in  general,  while  persons  of  brisk,  incisive  manners 
naturally  suggest  heartlessness  to  the  cowering  de- 
fendant. The  writer  knows  an  assistant  who  will 
not  try  a  case  if  there  is  a  man  with  a  pompadour  on 
the  jury,  and  neither  prosecution  nor  defence  cares 
for  long-haired  jurors  of  the  **yarb  doctor"  variety, 
while  the  dapper  little  man  with  the  ** dickey"  and 
red  necktie  is  invariably  excused  by  the  defence  un- 
less the  defendant  be  a  woman. 

The  frivolous  character  of  these  rules  needs  no 
comment.  Almost  every  lawyer  and  every  prosecu- 
tor believes  himself  to  be  a  past  master  in  the  study 


THE   JURY  215 

of  character  from  external  evidence,  and  upon  the 
most  trivial  and  unnatural  of  pretexts  will  challenge 
a  talesman  so  unfortunate  as  not  to  suit  his  fancy. 
Yet  when  all  is  done  and  when,  after  the  most  ex- 
haustive examination  and  cross-examination  of  sev- 
eral hundred  special  talesmen,  wrenched  from  their 
places  of  business  or  the  bosoms  of  their  families, 
twelve  men  have  been  finally  selected  and  sworn,  it 
is  probable  that  they  are  in  no  respect  superior  to 
the  first  twelve  who  might  have  been  chosen. 

In  murder  cases  each  side  may  challenge  peremp- 
torily thirty  talesmen,  and  numerous  are  the  legal 
*^ jumps"  over  which  they  must  successfully  ride 
before  they  can  qualify  for  service.  Thus  it  is 
unusual  in  a  homicide  case  to  select  a  jury  in  less 
than  two  days,  and  in  some  instances  it  has  taken 
two  weeks.  On  the  other  hand,  equally  satisfactory 
juries  have  occasionally  been  selected  in  such  cases 
in  less  than  an  hour„ 

The  general  futility  of  trying  to  secure  a  jury  of 
particular  capacity  or  intelligence,  or  one  which  will 
contain  no  juror  of  pronounced  idiosyncrasies,  is 
rather  well  illustrated  by  the  following  incident: 
The  defendant's  counsel,  a  man  of  considerable  re- 
pute at  the  criminal  bar,  had  spent  over  two  days 
in  the  elaborate  selection  of  a  jury.  It  had  taken  him 
two  hours  to  get  a  foreman  to  his  fancy,  but  at  last 
he  had  accepted  a  solid-looking  old  German  grocer. 
After  a  trial  lasting  several  days  the  jury  convicted 
the  defendant  in  short  order,  greatly  to  the  disgust 
of  the  eminent  lawyer,  who  vented  his  indignation 
rather  loudly  in  the  presence  of  the  foreman  as  he 
was  leaving  the  box.  The  old  German  leaned  over 
good-naturedly  and  remarked,  pointing  to  the  door 


216         THE  PRISONER  AT  THE  BAR 

in  the  back  of  the  court-room  leading  to  the  prison 

pen:  ^^Vell,  Mr.  ,  if  you  vant  to  know  vat  I 

tinks,  I  tells  you.  Ven  I  see  him  come  in  through 
dot  leetle  door  back  dere,  den  I  knows  he 's  guilty ! ' ' 

This  lawyer  now  selects  a  jury  in  thirty  minutes. 

Of  course,  some  examination  into  the  general  qual- 
ifications of  jurors  and  their  possible  bias  in  the 
case  is  imperative,  and  frequently  the  interposition 
of  a  peremptory  challenge  is  not  only  justifiable,  but 
absolutely  necessary.  A  talesman  will  sometimes 
betray  by  an  inflection  of  his  voice  a  sentiment  or 
prejudice  which  his  words  deny,  or  suggest  to  the 
vigilant  counsel  for  the  defendant  the  juror's  sus- 
ceptibility to  the  insidious  flattery  of  the  prosecutor 
in  making  him  a  part  of  the  *  ^  organization  of  the 
court. ' ' 

During  the  selection  of  a  jury  to  try  Moran,  the 
dynamiter,  in  March,  1906,  before  Judge  Foster,  in 
the  General  Sessions,  a  little  old  man  took  the  stand 
who  qualified  satisfactorily  as  a  juror  so  far  as  the 
prosecution  was  concerned.  Daniel  F.  Cohalan,  at- 
torney for  the  defendant,  then  took  him  in  hand 
somewhat  as  follows : 

**Have  you  any  prejudice  against  a  man  accused 
of  crime  r' 

**I  have  not,'*  replied  the  little  old  man. 

^*0r  against  this  defendant?'' 

*'I  have  not." 

*  *  Do  you  think  you  would  make  an  absolutely  fair 
and  impartial  juror  r' 

**I  do." 

**Do  you  know  of  any  reason  to  the  contrary!" 

**Idonot." 

Cohalan  turned  to  another  line  of  examination. 


THE   JURY  217 

*'Do  you  read  the  papers  T' 

^^Yes.    Yes.'' 

**What  paper  do  you  readT' 

«*Wliat  paper  r' 

*  ^  Yes.    What  paper  do  you  read  in  the  morning  ? '  * 

The  little  old  man  settled  himself  in  his  chair  and, 
eyeing  Cohalan  suspiciously,  replied : 

^^I  read  the  Herald,  Times,  World,  Journal,  Sun, 
Tribune,  Press,  Staats  Zeitung,  Telegraph '' 

**Stop!''  cried  Cohalan  feebly;  ** that's  quite 
enough.  Don't  you  do  anything  but  read  the 
papers?" 

The  little  old  man  regarded  the  lawyer  scornfully. 

' '  I  spend  six  hours  a  day  keeping  myself  informed 
of  what  is  going  on.  I  flatter  myself  that  there  is 
nothing  in  the  whole  world  with  which  I  am  not 
fully  acquainted.    Knowledge  is  power!" 

Cohalan  collapsed  into  his  seat. 

'*That  is  all.  You  are  excused.  You  know  too 
much  for  us ! " 

As  the  little  old  man  shuffled  off  he  whispered  to 
the  prosecutor : 

*^I'd  have  given  the twenty  years!" 

On  the  other  hand,  the  hyper-sensitiveness  of 
counsel  renders  it  easy  for  talesmen  to  escape  who 
do  not  wish  to  serve.  The  writer  knows  an  estimable 
man  who  is  regularly  drawn  about  four  times  a  year 
upon  the  special  jury.  He  has  never  served.  His 
method  is  as  follows :  Having  taken  his  seat  upon 
the  witness-stand  he  wrinkles  his  forehead  and  looks 
fiercely  at  the  defendant.  When  asked  if  he  has  any 
objection  to  capital  punishment  he  thrusts  out  his 
under  jaw  and  exclaims :  *^I  should  say  not!  I  think 
hangin's  too  good  for  'em!"    In  reality  he  is  the 


218         THE  PRISONEE  AT  THE  BAR 

mildest,  the  most  sympathetic  and  the  ** easiest''  of 
human  beings.  Another  observant  talesman  who  ap- 
pears periodically  has  learned,  the  writer  believes,  his 
trick  from  the  first.  His  stock  reply  to  the  same  ques- 
tion relative  to  capital  punishment  is,  *^I  have  not.  I 
believe  in  the  Biblical  injunction  of  *an  eye  for  an 
eye,'  and  ^a  tooth  for  a  tooth,'  and,  *  "Whoso  sheddeth 
man 's  blood  by  man  shall  his  blood  be  shed. ' ' '  Need- 
less to  say,  he  leaves  the  stand  with  the  same  alac- 
rity as  the  other.  Jurors  readily  enter  into  friendly 
relations  with  the  prosecutor  and  defendant's  coun- 
sel, but  rarely  with  any  effect  upon  their  verdicts. 
In  the  first  trial  of  Mock  Duck,  a  Chinaman  indicted 
for  murder,  where  the  defence  interposed  was  an 
alibi,  to  wit,  that  the  prisoner  had  been  buying  a 
terrapin  in  Fulton  Market  at  the  time  of  the  commis- 
sion of  the  crime  (whence  the  prosecutor  claimed 
that  it  was  the  case  of  a  Mock  Duck  with  a  mock  tur- 
tle defence),  a  juryman  met  the  defendant's  counsel 
during  recess  and  told  him  that  there  was  no  further 
need  for  him  to  call  any  more  witnesses  for  the 
defendant,  as  the  jury  **  understood  the  situation 
perfectly."  The  lawyer  took  the  hint,  and  upon  the 
reopening  of  court  closed  his  case,  feeling  sure  of  an 
acquittal  or  at  least  of  a  disagreement.  When  the 
jury  had  retired  the  talesman  in  question  made  a 
long  speech  in  favor  of  murder  in  the  first  degree, 
and  refused  to  vote  for  any  other  crime.  Such  per- 
formances are  rare.  Of  course,  it  not  infrequently 
occurs  that  a  juror  by  his  manner  of  asking  ques- 
tions shows  plainly  his  state  of  mind.  The  feelings 
of  a  prosecutor  can  be  easily  imagined  when  a  juror 
turns  in  disgust  from  one  of  the  People's  witnesses, 
or  those  of  a  defendant's  counsel  when  another, 


THE   JURY  219 

looking  towards  the  prisoner,  grinds  his  teeth  as  the 
evidence  goes  in  and  ejaculates,  *' Brute!'' 

The  jury  offers  a  fertile  field  for  the  study  of 
human  nature,  and  lawyers  and  prosecutors  learn  to 
look  regularly  for  certain  characters.  Of  these  may 
be  mentioned  the  too  officious  juror  who  asks  hun- 
dreds of  incompetent  and  irrelevant  questions  to 
which  the  lawyers  are  naturally  afraid  to  object,  and 
whose  inquisitiveness  has  to  be  curbed  by  the  court 
itself.  Such  a  juror  usually  shows  much  conviction 
one  way  "or  the  other  in  the  early  stages  of  the  case, 
and  before  he  has  heard  the  evidence.  Unfortu- 
nately his  executive  abilities  usually  fill  the  balance 
of  the  jury  with  such  disgust  that  to  have  a  juror  of 
this  sort  on  one's  side  is  more  of  a  misfortune  than 
a  boon. 

Jurors  of  this  variety  frequently  at  inopportune 
moments  interrupt  counsel  during  their  addresses. 
In  one  case  an  aggressive  talesman  broke  in  upon  a 
burst  of  carefully  prepared  eloquence  with  the  bru- 
tal interrogation:  *^How  about  the  hnifef'^  The 
counsel  stopped,  bowed  to  the  juror,  smiled,  and 
said  calmly :  ^  *  Thank  you,  Mr.  Smith,  I  'm  glad  you 
spoke  of  that.  I  am  coming  to  it  in  a  moment. ' '  The 
juror,  satisfied,  leaned  back  contentedly,  but  the 
lawyer  has  not  ^*come"  to  the  knife  yet. 

Practically  the  thing  most  desired  by  prosecutors 
and  lawyers  who  are  both  convinced  of  the  justice  of 
their  cause  is  homogeneity  of  some  sort  in  the  jury- 
box.  Naturally  antagonistic  elements  are  undesira- 
ble, and  a  wise  selector  of  juries  will  try  to  get  men 
of  approximately  the  same  age,  class  in  society, 
nationality,  religion,  and  general  character.  Of 
course,  this  is   a  difficult  matter,  but  without   a 


220         THE  PRISONER  AT  THE  BAR 

friendly  and  helpful  spirit  among  the  jurors  cases 
will  result  frequently  in  disagreements.  This  is 
naturally  less  objectionable  to  the  defendant  than  to 
the  People,  for  ordinarily  it  may  be  said  that  ^*two 
disagreements  are  equivalent  to  an  acquittal.*' 

The  common  idea  that  juries  are  prone  to  leave 
their  decisions  to  chance,  as  by  flipping  a  coin,  or  to 
act  upon  impulse,  whim,  caprice,  or  from  a  desire  to 
get  away,  is  grossly  exaggerated. 

It  was  Pope  who  sang  in  the  *'Rape  of  the  Lock'' : 

"  The  hungry  judges  soon  the  sentence  sign, 
And  wretches  hang,  that  jurymen  may  dine." 

Unfortunately,  if  the  jury  is  hungry  or  exhausted 
and  anxious  to  dispose  of  the  case,  the  defendant 
invariably  gets  the  benefit  of  it.  The  ^* wretches" 
don't  *^hang,"  but  instead  are  turned  out  with  a 
rush.  Instances  of  verdicts  being  determined  by 
such  considerations  are  in  fact  rare. 

Much  of  the  seeming  misguidedness  of  juries  in 
criminal  cases  is  due,  just  as  it  is  due  in  civil  cases, 
to  the  idiosyncrasy,  or  the  avowed  purpose  to  be 
*^agin'  the  government,"  of  a  single  talesman.  In 
an  ideal  community,  no  matter  how  many  persons 
constituted  the  jury,  provided  the  evidence  was  clear 
one  way  or  the  other,  the  jury  would  always  agree, 
since  they  would  all  be  honest  and  reasonable  men. 
But  just  as  a  certain  portion  of  our  population  is 
mentally  unbalanced,  anarchistic,  and  criminal,  so 
will  be  a  certain  portion  of  our  jurors.  In  addition 
to  these  elements  there  will  almost  invariably  be 
found  some  men  upon  every  panel  who  are  so  obsti- 
nate, conceited,  and  overbearing  as  to  be  totally 
unfit  to  serve,  either  from  the  point  of  view  of  the 


THE   JURY  221 

people  or  the  defence.  It  is  enough  for  one  of  these 
recalcitrant  gentlemen  that  eleven  other  human 
beings  desire  something  else.  That  settles  it.  They 
shall  go  his  way  or  not  at  all. 

The  writer  believes,  therefore,  that  some  allow- 
ance should  be  made  for  the  single  lunatic  or  anar- 
chist that  gets  himself  drawn  on  about  every  fifth 
jury,  for  if  he  once  be  empanelled  a  disagreement 
will  inevitably  follow.  This  could  be  accomplished 
by  reducing  the  number  necessary  for  a  verdict  to 
eleven.*  Hundreds  of  juries  have  been  **hung"  by 
just  one  man.f  The  trouble,  as  Professor  Thayer 
points  out,  began  a  long,  long  time  ago  in  a  case  re- 
ported in  the  Book  of  Assizes  in  1367. 

"In  another  assize  before  the  same  justices  at 
Northampton,  the  assize  was  sworn.  They  were  all 
agreed  except  one,  who  would  not  agree  with  the 
eleven.  They  were  remanded  and  stayed  there  all 
that  day  and  the  next,  without  drink  or  food.  Then 
the  judges  asked  him  if  he  would  agree  with  his  asso- 
ciates, and  he  said  never, — ^he  would  die  in  prison 
first.  Whereupon  they  took  the  verdict  of  the  eleven 
and  ordered  him  to  prison,  and  thereupon  a  day 

*  Whatever  the  actual  origin  of  the  number  twelve  for  this  pur- 
pose there  certainly  lingered  in  olden  times  a  feeling  that  it  had  a  sacred 
or  foreordained  character,  and  in  Duncomb's  Trials  per  pais,  the  follow- 
ing illuminating  explanation  is  to  be  found: 

"And  first  as  to  their  number  twelve:  and  this  number  is  no  less 
esteemed  by  our  law  than  by  Holy  Writ.  If  the  twelve  apostles  on 
their  twelve  thrones  must  try  us  in  our  eternal  state,  good  reason  has 
the  law  to  appoint  the  number  of  twelve  to  try  our  temporal.  The 
tribes  of  Israel  were  twelve,  the  patriarchs  were  twelve,  and  Solomon's 
officers  were  twelve.  Therefore  not  only  matters  of  fact  were  tried 
by  twelve,  but  of  ancient  times  twelve  judges  were  to  try  matters  in 
law,  in  the  Exchequer  Chamber,  and  there  are  twelve  counsellors  of 
state  for  matters  of  state;  and  he  that  wageth  his  law  must  have  eleven 
others  with  him  who  believe  he  says  true.  And  the  law  is  so  precise 
in  this  number  of  twelve,  that  if  the  trial  be  by  more  or  less,  it  is  a  mis- 
trial."    (Cf.  Thayer's  Preliminary  Treatise,  as  cited,  p.  90.) 

fCf.  "Criminal  Law  and  Its  Administration,"  by  Robert  Earl,  2 
Columbia  Law  Rev.  144. 


222         THE  PEISONER  AT  THE  BAR 

was  given  upon  this  verdict  in  the  Common  Bench. 
.  .  .  And  afterwards  by  assent  of  all  the  jus- 
tices it  was  declared  that  this  was  no  verdict.  It 
was  therefore  awarded  that  this  panel  be  quashed 
and  annulled,  and  that  he  who  was  in  prison  be 
enlarged,  and.  that  the  plaintiff  sue  a  new  venire 
facias.  .  .  .  Note,  that  the  justices  said  they 
ought  to  have  taken  the  assize  with  them  in  a  wagon 
until  they  were  agreed.'* 

How  much  happier  would  not  only  the  eleven,  but 
the  twelfth  juror,  who  swore  he  would  ^'die  first,'' 
have  been  if,  unanimity  not  being  required,  they 
could  comfortably  have  agreed  to  disagree  and  yet 
returned  to  court  and  rendered  a  verdict. 

A  jury  naturally  tends  to  lean  towards  the  defence 
— to  let  the  accused  go  if  they  can  conscientiously  do 
so;  to  find  somewhere  a  reasonable  doubt  as  to  the 
prisoner's  guilt — and  it  is  only  because  the  cases  are 
so  well  sifted  before  they  come  to  trial  at  all,  and  the 
wheat  separated  from  the  chaff  (the  defendants  in 
very  weak  cases  being  frequently  discharged  on  the 
recommendation  of  the  district  attorney  himself), 
that  the  percentage  of  acquittals  is  not  vastly 
greater. 

This  natural  feeling  of  sympathy  for  the  accused 
makes  it  all  the  easier  for  juries  to  be  affected  con- 
sciously or  unconsciously  by  considerations  they 
have  sworn  to  disregard.  Then  if  the  defendant  be 
a  woman,  or  a  poor  man  with  a  large  family,  or  his 
crime  has  injured  no  one's  purse,  or  restitution  has 
been  made,  or  if  the  offence  charged  is  merely  that 
of  swindling  by  means  of  false  representations  as  to 
credit,  or  the  defendant  is  very  young  or  very  old, 
or  wears  a  clean  collar,  or  has  an  attractive  person- 


THE   JURY  223 

ality,  or,  better,  a  beautiful  wife,  lie  is  turned  out 
with  a  cbeer. 

"  For  twelve  honest  men  have  decided  the  cause, 
Who  are  judges  alike  of  the  facts  and  the  laws." 

Yes,  the  jury  system  in  criminal  cases  is  a  **  prac- 
tical success'' — and  it  *' works  substantial  justice." 
It  works  the  exact  justice  that  we  want — the  exact 
justice  that  we  deserve.  As  we  grow  to  have  a 
greater  respect  for  human  life  and  a  higher  regard 
for  law  and  honesty,  the  verdicts  of  our  juries  will 
continue  to  keep  pace  with  our  condition.  Then  we 
shall  want  something  better,  and  we  shall  have  it. 
The  day  will  come  when  dishonesty  in  business  will 
lead  to  the  ball  and  chain  as  assuredly  as  arson  and 
rape.    But  the  time  is  not  yet. 

Then  juries  will  decide  the  issues  submitted  to 
them  upon  the  evidence  alone,  without  prejudice  or 
sympathy,  in  accordance  with  the  laws  which  they 
are  sworn  to  uphold,  without  truckling  to  popular 
sentiment  or  fear  of  newspaper  disapproval;  then 
they  will  allow  the  judge  to  perform  the  functions 
vested  in  him  by  law  without  usurpation  by  their 
verdicts ;  and  will  *  ^  true  deliverance  make ' '  between 
the  People  on  the  one  hand  and  the  defendant  on  the 
other.  Then  there  will  probably  be  no  need  for  juries 
— for  there  will  be  no  criminals.* 

*  Many  cases  result  in  mis-trials  owing  to  the  sickness  or  death  of  a 
single  juror.  In  persecutions  which  it  can  be  foreseen  will  be  long  the 
swearing  of  an  extra  juror  would  obviate  this  difficulty.  Cf.  "News- 
papers and  the  Jury,"  Clarence  B.  Smith,  17  Greenbag  223. 


CHAPTEE  XII 
THE  WITNESS 

The  probative  value  of  all  honestly  given  testi- 
mony depends,  naturally,  first  upon  the  witness's 
original  capacity  to  observe;  second,  upon  the 
extent  to  which  his  memory  may  have  played  him 
false ;  and  third,  upon  how  far  he  really  means  ex- 
actly what  he  says.  This  is  just  as  true  of  testimony 
in  cases  of  so-called  circumstantial  evidence  as  in 
cases  where  the  evidence  is  direct,  for  the  circum- 
stances themselves  must  be  testified  to  by  witnesses 
who  have  observed  them,  and  the  authoritativeness 
of  everything  these  witnesses  have  to  say  must  lie 
in  their  ability  to  see,  remember,  and  describe  accu- 
rately what  they  have  seen. 

The  subject  of  perjury  is  so  distinct  and  far-reach- 
ing that  it  deserves  separate  consideration.  The 
crime  is  easy  to  commit  and  difficult  to  establish  by 
competent  proof,  for  it  is  a  highly  technical  offence 
and  one  which  juries  seem  to  find  it  easy  to  condone. 
The  brother  or  friend  of  the  accused  has  but  to  take 
the  stand  and  swear  to  an  alibi  and  lol  he  is  free. 
The  chance  of  detection  is  small  in  comparison  with 
the  immediate  benefit  secured,  while  the  temptation 
to  swear  falsely  must,  at  least  in  the  case  of  the 
immediate  family  of  the  prisoner,  often  be  over- 
whelming. Where  convictions  for  perjury  are  se- 
cured heavy  sentences  are  invariably  imposed  and 
a  wholesome  apprehension  instilled  into  the  hearts 

024 


THE   WITNESS  225 

of  prospective  witnesses,  yet  the  amount  of  deliber- 
ate false  swearing  in  our  criminal  courts  would  be 
inadequately  described  as  shocking.  To  estimate  its 
quantity  would  be  difficult  if  not  impossible,  for  it 
varies  with  the  character  of  the  case  and  the  nature 
of  the  defence.  When  the  latter  is  an  alibi  the  entire 
testimony  for  the  prisoner  is  frequently  manufac- 
tured out  of  whole  cloth,  and  it  is  probably  not  very 
wide  of  the  mark  to  say  that  anywhere  from  a 
quarter  to  seventy-five  per  cent  of  the  testimony 
offered  by  the  defendant 's  witnesses  upon  the  direct 
point  in  issue  in  the  ordinary  run  of  criminal  trials 
is  perjured. 

Yet  a  careful  scrutiny  of  even  the  honestly  given 
testimony  in  such  cases  gives  rise  to  the  belief 
that  the  amount  of  strictly  accurate  evidence 
adduced  is  relatively  small,  so  small  as  probably  to 
stagger  the  credulity  of  the  layman  and  to  give  the 
lawyer  ground  for  reflection.  It  must  be  borne  in 
mind,  however,  that  this  refers  to  criminal  trials 
only  and  to  testimony  of  a  character  closely  relevant 
to  the  issue. 

The  first  consideration  is  how  far  the  witness  was 
originally  capable  of  receiving  correct  impressions 
through  his  senses.  Naturally  this  depends  almost 
entirely  upon  his  physical  equipment  and  the  keen- 
ness and  accuracy  of  his  general  observation,  both 
of  which  are  usually  evidenced  to  a  considerable 
degree  by  his  appearance  and  conduct  upon  the 
stand. 

Children  are  proverbially  observant,  and  make 
remarkable  witnesses,  habitually  noticing  details 
which  inevitably  escape  the  attention  of  their  elders ; 
while  various  classes  of  persons  by  reason  of  their 


226         THE  PRISONER  AT  THE  BAR 

professional  requirements  are,  of  course,  better 
qualified  than  others  to  observe  certain  facts  or  con- 
ditions, as  a  gem  merchant  the  shape  and  cutting  of 
a  diamond,  or  a  doctor  the  physical  condition  of  a 
patient. 

Witnesses  are  often  honestly  mistaken,  however, 
as  to  their  own  ability  to  observe  facts,  and  will 
unhesitatingly  testify  that  they  could  hear  sounds 
and  discern  objects  at  extraordinary  distances. 
Lawyers  frequently  attempt  to  induce  aged  or  infirm 
witnesses  to  testify  that  they  could  hear  plainly 
what  was  said  by  the  defendant,  in  an  ordinary  tone, 
at  a  distance,  say,  of  forty  feet.  The  lawyer  speaks 
in  loud  and  distinct  tones  during  the  preliminary 
examination,  and  then  gradually  drops  his  voice  to 
that  usually  employed  in  speaking,  in  the  hope  that 
the  witness  will  ask  him  to  repeat  the  question.  This 
ruse  usually  fails  by  reason  of  the  fact  that  the 
lawyer,  in  his  anxiety  to  show  that  the  witness  could 
not  possibly  hear  the  distance  claimed,  lowers  his 
voice  to  such  an  extent  that  the  test  is  obviously 
unfair. 

For  similar  reasons  counsel  often  call  upon  such 
witnesses  to  state  the  time  by  the  clock  which 
usually  hangs  upon  the  rear  wall  of  the  court-room. 
A  distinguished  but  conceited  advocate,  not  long  ago, 
after  securing  an  unqualified  statement  from  an 
octogenarian,  who  was  bravely  enduring  cross-ex- 
amination, that  he  *  *  saw  the  whole  thing  as  if  it  had 
occurred  ten  feet  away,"  suddenly  challenged  him 
to  tell  the  time  by  the  clock  referred  to.  The  lawyer 
did  not  look  around  himself,  as  he  had  done  so  about 
half  an  hour  before,  when  he  had  noticed  that  it  was 
half  after  eleven.    The  old  man  looked  at  the  clock 


THE   WITNESS  227 

and  replied,  after  a  pause,  ** Half-past  eleven,"  upon 
which  the  lawyer,  knowing  that  it  must  be  nearly 
twelve,  turned  to  the  jury  and  burst  into  a  derisive 
laugh,  exclaiming  sarcastically,  *^That  is  all/^  and 
threw  himself  back  in  his  seat  with  an  air  of  hav- 
ing finally  annihilated  the  entire  value  of  the  wit- 
ness's testimony.  The  distinguished  practitioner, 
however,  found  himself  laughing  alone.  Presently 
one  of  the  jury  chuckled,  and  in  a  trice  the  whole 
court-room  was  in  a  roar  at  the  lawyer's  expense. 
The  clock  had  stopped — at  half -past  eleven. 

The  professional  actor  upon  the  stage  presents 
the  illusion  of  nature  by  exaggerating  those  details 
of  action  which  ordinarily  would  escape  the  attention 
of  the  observer. 

In  daily  life  we  are  quite  as  likely  as  not  to  be 
deceived  by  what  we  have  seen,  and  this  fact  is  so 
familiar  to  jurors  that  they  are  apt  to  distrust  wit- 
nesses who  profess  to  have  seen  much  of  complicated 
or  rapidly  conducted  transactions.  They  want  the 
main  facts  stated  convincingly.  The  rest  can  take 
care  of  themselves.  The  extraordinary  extent  to 
which  the  complex  development  of  modern  life  has 
dwarfed  our  powers  of  observation  is  noticeable 
nowhere  more  markedly  than  in  the  court-room. 
Things  run  so  smoothly,  transportation  facilities  are 
so  perfect,  specialization  is  carried  to  so  high  a 
degree,  and  our  whole  existence  goes  on  so  much 
indoors,  that  it  ceases  to  be  a  matter  of  note  or  even 
of  interest  that  the  breakfast  is  properly  cooked  and 
served,  that  we  are  whisked  downtown  (a  little  mat- 
ter say  of  five  miles)  in  ten  or  twelve  minutes,  that 
we  are  shot  up  to  our  offices  through  twenty  floors 
in  an  electric  elevator,  that  there  is  a  blizzard  or  a 


228         THE  PEISONER  AT  THE  BAR 

deluge,  or  that  part  of  Broadway  has  been  blown  up 
or  a  fifteen-story  building  fallen  down.  We  pass 
days  without  paying  the  remotest  attention  to  the 
weather,  and  forget  that  we  have  relations.  Instead 
of  walking  home  to  supper,  pausing  to  talk  to  our 
friends  by  the  way,  we  drop  into  the  subway,  bury 
ourselves  in  newspapers,  and  are  vomited  forth  al- 
most without  our  knowing  it  at  our  front  doorsteps. 
The  multiplicity  of  detail  deprives  us  of  either  the 
desire  or  the  capacity  to  observe,  and  we  cultivate  a 
habit  of  not  observing  lest  our  eyes  and  brains  be 
overwhelmed  with  fatigue.  Observation  has  ceased 
to  be  necessary  and  has  taken  its  place  among  the 
lost  arts. 

Compare  the  old  days  when  a  Greek  could  go  to 
hear  the  **(Edipus,''  and  on  returning  home  could 
recount  practically  the  whole  of  it  from  beginning 
to  end  for  the  benefit  of  the  wife,  who  was  not  al- 
lowed to  go  herself,  or  even  the  comparatively  re- 
cent period  when  the  funeral  oration  over  Alexander 
Hamilton  could  be  reported  in  the  ** Evening  Post*' 
from  memory. 

Much  the  more  difficult  problem,  however,  is  to 
determine  how  far  the  witness  is  the  victim  of  his 
memory  and  is  unconsciously  confusing  fact  with 
imagination,  or  knowledge  with  belief.  It  is  a  mat- 
ter of  common  experience  that  almost  all  cases  are 
stronger  in  court  than  they  give  the  impression  of 
being  when  the  witnesses  are  first  examined  in  the 
private  office.  Time  and  again,  cases  which  in  the 
beginning  have  seemed  hopeless  to  prosecute  have 
resulted  in  verdicts  of  conviction,  and  defences  origi- 
nally so  fragile  as  to  appear  but  gossamer  have 
returned  many  a  defendant  to  his  despairing  family. 


THE   WITNESS  229 

The  reason  is  not  far  to  seek.  Witnesses  to  the 
events  leading  up  to  a  crime  are  acquainted  with 
a  thousand  details  which  are  as  vivid,  and  probably 
more  vivid,  to  them  than  the  occurrence  in  regard  to 
which  their  testimony  is  actually  desired.  It  may 
well  be  that  the  immaterial  facts  are  the  only  ones 
which  have  interested  them  at  all,  while  their  knowl- 
edge of  the  criminal  act  is  relatively  slight.  For 
example,  they  know,  of  course,  that  they  were  in  the 
saloon;  are  positive  that  the  complainant  and  de- 
fendant were  playing  cards,  even  remembering  some 
of  the  hands  dealt;  are  sure  that  the  complainant 
arose  and  walked  away;  have  a  very  vivid  recollec- 
tion that  in  a  few  moments  the  defendant  got  up 
and  followed  him  across  the  room;  are  pretty  clear, 
although  their  attention  was  still  upon  the  game, 
that  the  two  men  had  an  argument;  and  have  a 
strong  impression  that  the  defendant  hit  the  com- 
plainant. In  point  of  fact,  their  evidence  is  really  of 
far  less  value,  if  of  any  at  all,  in  regard  to  the  actual 
striking  than  in  regard  to  the  events  leading  up  to  it, 
for  at  the  time  of  the  blow  their  attention  was  being 
given  less  to  the  participants  in  the  quarrel  than  to 
something  else.  Their  ideas  are  in  truth  very  hazy 
as  to  the  latter  part  of  the  transaction.  However, 
they  become  witnesses,  pronouncing  themselves 
ready  to  swear  that  they  saw  the  blow  struck,  which 
is  perhaps  the  fact.  Their  evidence  is  practically  of 
no  value  on  the  question  of  justification  or  self- 
defence.  But  finding,  on  being  examined,  that  their 
testimony  is  wanted  principally  on  that  aspect  of 
the  case,  they  naturally  tell  their  entire  story  as  if 
they  were  as  clear  in  their  own  minds  upon  one  part 
of  it  as  another.    Being  able  to  give  details  as  to  the 


230         THE  PEISONEE  AT  THE  BAR 

earlier  aspect  of  tlie  quarrel,  they  feel  obliged  to  be 
equally  definite  as  to  all  of  it.  If  they  have  an  idea 
that  the  striking  was  without  excuse,  they  gradually 
imagine  details  to  fit  their  point  of  view.  This  is 
done  quite  unconsciously.  Before  long  they  are  as 
glib  with  their  description  of  the  assault  as  they  are 
about  the  game  of  cards.  They  get  hazy  on  what 
occurred  before,  and  overwhelmingly  positive  as  to 
what  occurred  towards  and  at  the  last,  and  on  the 
witness-stand  swear  convincingly  that  they  saw  the 
defendant  strike  the  complainant,  exactly  how  he  did 
it,  the  words  he  said,  and  that  the  complainant  made 
no  offer  of  any  sort  to  strike  the  defendant.  From 
allowing  their  minds  to  dwell  on  their  own  concep- 
tion of  what  must  have  occurred,  they  are  soon  con- 
vinced that  it  did  occur  in  that  way,  and  their  account 
flows  forth  with  a  circumstantiality  that  carries  with 
it  an  irresistible  impression  of  veracity. 

The  witness  remembers  in  a  large  proportion  of 
cases  what  he  wants  to  remember,  or  believes  oc- 
curred. The  liar  with  his  prepared  lie  is  far  less 
dangerous  than  the  honest,  but  mistaken  witness,  or 
the  witness  who  draws  inadvertently  upon  his  imagi- 
nation. Most  juries  instinctively  know  a  liar  when 
they  see  and  hear  one,  but  few  of  them  can  determine 
in  the  case  of  an  honestly  intentioned  witness  how 
much  of  his  evidence  should  be  discarded  as  unrelia- 
ble, and  how  much  accepted  as  true. 

The  greatest  difficulty  in  the  trial  of  jury  cases  so 
far  as  the  evidence  is  concerned  lies  in  the  fallibility 
of  the  human  mind,  and  not  in  the  inventive  genius 
of  the  devil.  An  old  man  who  combines  a  venerable 
appearance  with  a  failing  memory  is  the  witness 
most  to  be  feared  by  either  side. 


THE   WITNESS  231 

In  a  recent  case  a  patriarch  of  some  eighty-five 
years  positively,  convincingly,  and  ultra-dramati- 
cally  identified  the  defendant  as  a  man  who  had 
knocked  him  down  and  robbed  him  of  a  ring.  The 
identification  was  so  perfect  that  on  the  evidence  of 
this  aged  witness  alone  the  jury  convicted  the  de- 
fendant after  but  a  few  moments '  deliberation.  He 
was  sentenced  to  ten  years  in  Staters  prison,  al- 
though he  denied  vehemently  that  he  had  ever  seen 
the  complainant.  As  he  was  being  led  from  the  bar, 
the  real  criminal  arose  among  the  audience  and  gave 
himself  up,  stating  that  he  could  not  sit  by  and  see 
an  innocent  man  receive  so  great  a  punishment.  The 
inference  was,  that  had  the  sentence  been  lighter  his 
conscience  would  not  have  pricked  him  sufficiently 
to  sanction  his  act  of  self-sacrifice.  In  cross-exami- 
nation lies  the  only  corrective  of  this  sort  of  specious 
testimony,  but  it  would  be  manifestly  inadequate  to 
prevent  injustice  in  such  an  instance  as  that  just  de- 
scribed. Juries  must  and  do  take  the  evidence  of 
most  well-intentioned  witnesses  with  a  grain  of 
salt. 

Both  men  and  women  habitually  testify  to  facts 
as  actually  occurring  on  a  specific  occasion  because 
they  occurred  on  most  occasions : 

Q.  ^^Did  your  husband  lock  the  door?" 

A,  *^0f  course  he  did." 

Q,  **How  do  you  know?" 

A.  **He  always  locks  the  door." 

Witness  after  witness  will  take  the  stand  and 
testify  positively  that  certain  events  took  place,  or 
certain  acts  were  done,  when  in  point  of  fact  all  they 
can  really  swear  to  is  that  they  usually  took  place 
or  usually  were  done ; 


232         THE  PRISONEE  AT  THE  BAR 

Q.  **Did  he  put  on  his  hatr' 

A.  ^* Certainly  he  did.'' 

Q.  **Did  you  see  MmT' 

A,  '  *  No,  but  he  must  have  put  on  his  hat  if  he  went 
out." 

And  the  probability  is  that  the  whole  question  to 
be  determined  was  whether  or  not  ^'he''  did  go  out 
or  stay  in. 

The  layman  chancing  to  listen  to  a  criminal  trial 
finds  himself  gasping  with  astonishment  at  the 
deluge  of  minute  facts  which  pour  from  the  wit- 
nesses '  mouths  in  regard  to  the  happenings  of  some 
particular  day  a  year  or  so  before.  He  knows  that 
it  is  humanly  impossible  actually  to  remember  any 
such  facts,  even  had  they  occurred  the  day  before 
yesterday.  He  may  ask  himself  what  he  did  that 
very  morning  and  be  unable  to  give  any  satisfactory 
reply.  And  yet  the  jury  believe  this  testimony,  and 
because  the  witness  swears  to  it  it  goes  upon  the 
record  as  evidence  of  actual  knowledge.  In  ninety- 
nine  cases  out  of  a  hundred  counsel's  only  recourse 
is  to  argue  to  the  jury  that  such  a  memory  is  impossi- 
ble. But  in  the  same  proportion  of  cases  the  jury 
will  take  the  oath  of  the  witness  against  the  lawyer's 
reasoning  and  their  own  common-sense.  This  is 
because  of  the  fictitious  value  given  to  the  witness's 
oath  by  talesmen  who  attach  little  significance  to 
their  own.  **He  swears  to  it,"  says  the  juryman, 
rubbing  his  forehead.  *'Well,  he  must  remember  it 
or  he  wouldn  't  swear  to  it ! "  And  the  witness  prob- 
ably thinks  he  does  remember  it. 

Yet  who  of  us  could  state  with  certainty  the  guests 
at  a  particular  dinner  six  months  ago  1  Or  the  trans- 
actions of  a  morning  only  a  week  ago,  with  any  accu- 


THE   WITNESS  233 

racy  as  to  time?  What  the  witness  frequently  does 
is  to  discuss  the  matter  with  his  friends  who  were 
present  on  the  occasion  in  question,  and,  as  it  were, 
form  a  sort  of  ^^pooP*  of  their  common  recollections, 
impressions,  and  beliefs.  One  suggestion  corrects 
or  modifies  another  until  a  comparatively  lucid  and 
logical  story  is  evoked.  When  this  has  been  accom- 
plished the  witness  mentally  exclaims :  *  *  Of  course ! 
That  was  just  the  way  it  was !  Now  I  remember  it 
all  I "  The  time  is  so  distant  that  whatever  the  final 
crystallization  of  the  matter  may  be,  it  is  far  from 
likely  that  it  will  thereafter  be  shown  to  be  inaccurate 
by  any  piece  of  evidence  which  will  present  itself  to 
the  witness  and  his  friends.  The  account  thus  devel- 
oped by  mutual  questions  and  ^* refreshing''  of  each 
other 's  recollection  becomes,  so  far  as  the  parties  to 
it  are  concerned,  the  fact.  The  witness  is  now  posi- 
tive that  he  did  and  said  exactly  so  and  so,  and  noth- 
ing will  swerve  him  from  it,  for  inherently  there  is 
nothing  in  the  story  or  its  make-up  that  affords  any 
reason  for  questioning  its  accuracy.  This  story  re- 
peated from  time  to  time  becomes  one  of  the  most 
vivid  things  in  the  witness 's  mental  experience.  He 
repeats  it  over  and  over,  is  cross-examined  by  his 
own  attorney  upon  it,  incorporates  it  in  an  affidavit 
to  which  he  swears,  and  when  he  takes  the  stand 
recounts  these  ancient  happenings  with  an  aggres- 
siveness and  enthusiasm  that  bring  dismay  to  the 
other  side. 

But  what  a  farce  to  call  this  recollection!  What 
is  this  circumstantial  romance  when  it  comes  to  be 
analyzed?  Jones,  a  friend  of  Smith  the  prospective 
witness,  is  anxious  to  establish  an  alibi,  and  asks 
Smith  if  he  doesn't  remember  meeting  him  in  the 


234         THE  PEISONEE  AT  THE  BAR 

ciub  on  February  12,  two  years  before.  Smith  has 
no  recollection  of  it  at  all,  but  Jones  says:  **0h, 
yes,  you  were  going  to  the  theatre  with  Robinson. ' ' 
Of  course,  if  Jones  is  so  sure.  Smith  naturally  begins 
to  think  it  is  probably  the  fact,  and  he  does  remember 
vaguely  that  he  and  Robinson  spent  an  evening  to- 
gether. So  he  consults  his  diary  and  finds  it  re- 
corded there  that  he  did  attend  the  theatre  on  the 
day  in  question  with  Robinson.  He  does  not  remem- 
ber the  play,  but  Robinson  recalls  that  it  was 
**The  Chinese  Honeymoon,"  and  believes  that  they 
dined  together  first  at  the  club.  Smith  now  thinks 
he  remembers  this  himself.  Then  Robinson  sug- 
gests that  they  probably  went  to  the  theatre  in  a 
cab.  They  look  in  a  file  of  old  papers  and  find  that 
it  was  raining.  That  settles  it — of  course,  they  went 
in  a  cabo  The  next  question  is  the  hour.  They  have 
no  recollection  of  being  late,  so  they  must  have  ar- 
rived on  time.  Well,  the  paper  says  the  play  com- 
menced at  eight,  and  it  takes  a  cab  about  twenty 
minutes  to  get  from  the  club  to  Daly's  Theatre,  so  it 
is  reasonably  clear  that  they  must  have  started  a  lit- 
tle before  eight.  Smith  unconsciously  is  persuaded 
to  believe  that  if  Jones  was  right  about  their  going 
to  the  theatre,  he  must  also  have  been  in  the  club  at 
the  time  he  says  he  was  there.  Both  he  and  Robin- 
son recall  that  Jones  was  always  hanging  round  the 
club  two  years  ago,  and  as  neither  can  remember  an 
evening  when  he  wasn't  there,  they  decide  he  must 
have  been  there  that  night,  Robinson  has  a  dim 
recollection  that  they  had  a  drink  together.  That  is 
a  pretty  safe  guess  and  has  all  the  air  of  verisimili- 
tude. In  an  hour  or  two  Smith  is  ready  to  swear 
positively  from  recollection  that  he  dined  with  Rob- 


THE   WITNESS  235 

inson  at  the  club  on  February  12  two  years  ago, 
met  Jones,  had  a  drink  with  him,  that  this  occurred 
at  seven  fifty-five,  that  it  was  raining,  that  they  took 
a  cab,  etc.,  etc.  In  its  elements  this  testimony  is 
entirely  hearsay  upon  the  only  vital  point,  i.e., 
Jones's  presence  in  the  club  at  that  time,  and  the 
immaterial  remainder  is  made  up  of  equal  parts  of 
diary,  newspaper,  play-bill,  weather  report,  usual 
custom,  reliance  on  Robinson's  alleged  recollection, 
and  belief  in  Jones 's  innocence.  He  has  practically 
no  actual  memory  of  the  facts  at  all,  and  the  only 
thing  he  really  does  remember  is  that  a  long  time  ago 
he  did  attend  some  theatre  with  Robinson. 

The  common  doctrine  of  what  is  known  as  **  re- 
freshing the  memory"  in  actual  practice  is  notori- 
ously absurd.  Witnesses  who  have  made  memoranda 
as  to  certain  facts,  or  even,  in  certain  cases,  of  con- 
versations, and  who  have  no  independent  recollec- 
tion thereof,  are  permitted  to  read  them  for  the 
purpose  of  ** refreshing''  their  memories.  Having 
done  so,  they  are  then  asked  if  they  noiv  have,  inde- 
pendently  of  the  paper,  any  recollection  of  them. 
In  ninety-nine  cases  out  of  a  hundred  it  would  be 
absolutely  impossible  for  them  really  to  remember 
anything  of  the  sort.  They  read  the  entry,  know  it  is 
probably  accurate,  and  are  morally  convinced  that 
the  fact  is  as  thereon  stated.  They  answer  yes,  that 
their  recollection  has  been  refreshed  and  that  they 
now  do  remember,  and  are  allowed  to  testify  to  the 
fact  as  of  their  own  knowledge.  In  most  instances 
they  do  not  clearly  understand  the  distinction  they 
are  called  upon  to  draw  between  actual  independent 
recollection  and  a  strong  belief  on  their  own  part 
that  the  fact  must  be  as  recorded.    It  is  the  ex- 


236         THE  PRISONER  AT  THE  BAR 

ceptional  witness  indeed  who  makes  any  sneli  dis- 
tinction. 

There  are  also  many  eases  where  a  defendant  has 
been  put  in  jeopardy  because  some  one,  remembering 
that  he  intended  to  do  an  act,  becomes  convinced  that 
he  has  done  so,  to  the  extent  of  being  willing  to  swear 
thereto.  No  better  illustration  of  this  kind  of  error 
could  be  given  than  the  disappearance  of  the  famous 
necklace  of  a  prominent  resident  of  Newport  during 
the  summer  of  1904.  There  lives  hardly  a  family 
which  has  not  frequently  had  such  an  experience. 
Some  night  the  husband  can't  find  his  pearl  shirt- 
studs.  He  knows  he  had  them  on  the  evening  before. 
The  hue  and  cry  is  raised.  Maledictions  are  called 
down  upon  Anna  or  Delia  or  Nora.  But  the 
studs  are  not  in  the  shirt.  Their  owner  swears  he 
left  them  there.  Then  Delia  tremblingly  suggests 
that  ^^  master  dined  in  his  ordinary  clothes  last  even- 
ing, ' '  and  he  realizes  that  it  was  so  late  when  he  got 
home  that  at  the  last  minute  he  decided  not  to 
change.  Amid  great  excitement  the  studs  are  located 
in  the  bureau  drawer  where  they  belonged. 

The  final  question  to  be  determined  by  the  juror 
in  regard  to  the  testimony  of  any  witness  is  how  far 
the  latter  has  succeeded  in  conveying  his  actual 
recollections  through  the  medium  of  speech  and  ges- 
ture. This  necessarily  depends  upon  a  variety  of 
considerations.  Among  these  are  his  familiarity 
with  the  English  language ;  inadvertent  accentuation 
of  wrong  words  or  of  the  less  important  features  of 
his  testimony;  his  physical  condition,  which  in  nine 
cases  out  of  ten  is  one  of  extreme  nervousness  and 
timidity,  if  not  of  actual  fear ;  and  a  hundred  other 
trifling,  but,  in  the  aggregate,  material  matters. 


THE   WITNESS  237 

The  most  effective  testimony  is  that  which  is  given 
with  what  the  jury  regard  as  the  evidences  of  candor. 
It  is  a  familiar  fact  that  the  surer  a  person  is 
of  anything,  particularly  among  the  laboring 
classes,  the  more  loudly  will  he  assert  its  truth. 
This  is  so  well  known  to  the  jury  as  ordinarily  con- 
stituted that  unless  testimony  is  given  with  positive- 
ness  it  might  as  well  not  be  given  at  all.  Much  as  it 
is  to  be  deprecated,  an  assertive  lie  is  of  much  more 
weight  with  a  jury  than  an  anemic  statement  of  the 
truth.  The  juror  imagines  himself  telling  the  story, 
and  feels  that  if  he  were  doing  so  and  his  testimony 
were  true,  he  would  be  so  convincing  that  the  jury 
could  have  no  doubt  about  it  at  all.  Ofttimes  a  wit- 
ness leads  the  jury  to  suspect  that  he  is  a  liar  simply 
because  he  has  too  strong  a  sense  of  the  proprieties 
of  his  position  vehemently  to  resent  a  suggestion  of 
untruthfulness.  The  gentleman  who  mildly  replies 
•  *  That  is  not  so ' '  to  a  challenge  of  his  veracity,  makes 
far  less  impression  on  the  jury  than  the  coal-heaver 
who  leans  forward  and  shakes  his  fist  in  the  shyster's 
face,  exclaiming:  *^If  ye  said  that  outside,  ye  little 
spalpeen,  I'd  knock  yer  head  off."  **Ah,"  say  the 
jury,  *  *  there 's  a  man  for  you. ' '  Just  as  your  puritan 
is  at  a  disadvantage  in  an  alehouse,  and  your  dandy 
in  a  mob,  so  are  the  hyper-conscientious  and  the 
oversensitive  and  refined  before  a  jury.  The  most 
effective  witness  is  he  whom  the  general  run  of 
jurors  can  understand,  who  speaks  their  own  lan- 
guage, feels  about  the  same  emotions,  and  is  not  so 
morbidly  conscientious  about  details  that  in  qualify- 
ing testimony  he  finds  himself  entangled  and  ren- 
dered helpless  in  his  own  refinements.  A  distin- 
guished lawyer  testifying  in  a  recent  case  was  so 


238         THE  PRISONER  AT  THE  BAR 

careful  to  qualify  every  statement  and  refine  every 
bit  of  his  evidence  that  the  jury  took  the  word  of  a 
perjured  loafer  and  a  street-walker  in  preference. 
This  kind  of  thing  happens  again  and  again,  and  the 
wily  witness  who  thinks  himself  clever  in  appearing 
overdisinterested  is  ** hoist  by  his  own  petard.'' 
The  jury  at  once  distrust  him.  They  feel  either 
that  he  is  making  it  all  up,  or  is  in  fact  not  sure  of 
his  evidence,  else,  they  argue,  he  would  be  more 
positive  in  giving  it. 

Most  witnesses  in  the  general  run  of  criminal  cases 
have  no  comprehension  of  the  meaning  of  words  of 
more  than  three  syllables.  It  is  hopeless  to  make 
use  of  even  such  modest  members  of  our  national 
vocabulary  as  ** preceding,''  ** subsequent, "  ** vari- 
ous, ' '  etc.  A  negro  when  asked  if  certain  shots  were 
simultaneous  replied: 

* '  Yas,  boss.  Dat  's  it !  'Zactly  simultaneous !  One 
right  after  de  odder." 

The  ordinary  witness  usually  says  ** minutes" 
when  he  means  ** seconds."  He  will  testify  without 
hesitation  that  the  defendant  drew  his  revolver  and 
immediately  shot  the  complainant,  illustrating  on 
the  stand  the  rapidity  of  the  movement.  "When 
asked  how  long  it  took,  he  will  answer :  *  *  Oh,  about 
two  or  three  minutes." 

A  proper  medium  in  which  to  converse  between 
the  lawyer  and  witness  is  sometimes  difficult  to  find, 
and  invariably  much  tact  is  required  in  handling 
witnesses  of  limited  education.  The  writer  remem- 
bers one  witness  who  was  completely  disconcerted 
by  the  use  of  the  word  '* cravat,"  and  at  the  precise 
moment  the  attorney  was  so  confused  as  not  to  be 
able  to  remember  any  synonym.     The  Tenderloin 


THE   WITNESS  239 

and  the  Bowery  have  a  vocabulary  of  their  own  dif- 
fering somewhat  from  that  of  beggars  and  profes- 
sional criminals.  The  language  of  the  ordinary 
policeman  is  a  polyglot  of  all  three.  Popular  writers 
on  the  ^^ powers  that  prey/'  and  dabblers  in  crimi- 
nology in  general,  are  apt  to  become  the  victims  of 
self -alleged  **  ex-convicts  "  and  **  criminals"  who  are 
anxious  to  sell  unreliable  information  for  honest 
liquor.  A  large  part  of  the  lingo  in  realistic  trea- 
tises on  prison  life  and  *^life  among  the  burglars, '^ 
originates  in  the  doped  imagination  of  whatever  fan- 
ciful *^ reformed''  thief  happens  to  be  the  personal 
gold  mine  of  that  particular  author.  Thieves,  like 
any  distinct  class,  make  use  of  slang,  some  of  which 
is  peculiar  to  them  alone.  But  for  the  most  part  the 
** tough"  elements  in  the  community  make  them- 
selves easily  understood  either  in  the  office  or  on 
the  witness-stand. 

Where  the  witness  speaks  a  foreign  language  the 
task  of  discovering  exactly  what  he  knows,  or  even 
what  he  actually  says,  is  herculean.  In  the  first 
place  interpreters,  as  a  rule,  give  the  substance — as 
they  understand  it — of  the  witness's  testimony 
rather  than  his  exact  words.  It  is  also  practically 
impossible  to  cross-examine  through  an  interpreter, 
for  the  whole  psychological  significance  of  the  an- 
swer is  destroyed,  ample  opportunity  being  given  for 
the  witness  to  collect  his  wits  and  carefully  to  frame 
his  reply.  One  could  cross-examine  a  deaf-mute  by 
means  of  the  finger  alphabet  about  as  effectively  as 
an  Italian  through  a  court  interpreter,  who  probably 
speaks  (defectively)  seventeen  languages. 

The  reader  might  perhaps  conclude  from  what  has 
been  said  that  the  action  of  the  ordinary  jury  in  most 


240         THE  PEISONER  AT  THE  BAR 

cases  must  be  founded  simply  upon  shrewd  guess- 
work. To  a  certain  degree  this  cannot  be  denied, 
and  it  is  equally  true  that  all  the  delicate  processes 
of  the  human  mind,  and  the  shadowy  presences  there 
of  intent,  motive,  and  recollection,  can  never  be  de- 
monstrated save  by  inference.  Our  machinery  is 
crude  indeed.  Ofttimes  it  is  like  trying  to  dissect 
a  butterfly  with  a  pair  of  pincers,  and  the  wonder  is 
that  the  jury  are  able  to  get  at  the  truth  as  fre- 
quently as  they  do.  Hence  the  necessity  for  the 
advocate  to  assist  the  jury  and  remedy  their  igno- 
rance of  the  psychology  of  testimony  by  his  own 
observation,  knowledge,  and  experience.  With  the 
jury  keenly  alive  to  all  the  possibilities  of  error  in 
the  testimony  of  even  the  most  honest  of  witnesses, 
it  is  for  the  advocate,  the  psychologist  of  the  law,  to 
test  by  his  cross-examination  and  demonstrate  in 
his  summing  up  the  precise  probative  value  of  the 
evidence,  frequently  revealing,  below  an  apparently 
limpid  stream  of  truth,  a  turbid  bed  of  conjecture, 
assumption,  belief,  hearsay,  and  inaccuracy  of  ex- 
pression, with  the  rank  weeds  of  perjury  growing 
iust  beneath  the  surface. 


CHAPTER   Xni 
THE  VERDICT 

The  judge  having  delivered  his  charge,  and  the 
jury  having  gathered  up  their  collection  of  miscella- 
neous garments  and  retired  to  the  jury-room,  a 
court  officer  claps  the  prisoner  upon  the  shoulder 
and  leads  him  away  to  the  prison  pen.  Once  the 
door  of  the  court-room  has  closed  behind  him,  he  is 
conducted  along  a  narrow  corridor  to  the  head  of  a 
flight  of  iron  steps  at  the  foot  of  which  stands  a 
keeper.  As  he  descends  the  stairs  the  attendant 
notifies  the  keeper  that  the  defendant  is  on  his  way 
down :  and  once  the  latter  is  safely  below  the  keeper 
shouts  **A11  right!''  to  the  officer  above,  who  returns 
once  more  to  his  duties  in  the  court-room.  Since 
there  is  little  danger  of  an  escape  the  officers  some- 
times become  a  trifle  lax  in  the  handling  of  prisoners 
awaiting  the  verdict. 

An  incident  recently  occurred  which  shows  how 
much  care  is  necessary  in  guarding  a  defendant  who 
confidently  expects  a  verdict  of  conviction.  At  the 
conclusion  of  a  trial  for  grand  larceny  the  jury  went 
out  and  the  prisoner  was  conducted  to  the  head  of 
the  stairs  leading  down  to  the  pen.  The  court  officer 
notified  the  keeper  when  the  prisoner  was  about  half- 
way down,  and  distinctly  heard  the  latter  reply 
* '  All  right ! "  He  thereupon  departed.  The  keeper, 
however,  had  not  uttered  a  syllable  and  was  entirely 
unaware  of  the  return  of  the  defendant,  who,  being 

241 


242         THE  PRISONER  AT  THE  BAR 

sometliing  of  a  ventriloquist,  had  answered  for  him, 
and  had  then  calmly  reascended  the  stairs,  passed 
through  the  corridor  to  another  court-room  where 
he  had  mingled  with  the  crowd,  and  later  had  had  no 
difficulty  in  making  his  escape  first  into  the  main  cor- 
ridor and  thence  into  the  street.  When  the  jury 
presently  returned  and  the  prisoner  was  sent  for, 
his  flight  was  discovered.  The  court  waited  pa- 
tiently while  the  pens,  corridors  and  finally  the 
entire  building  were  searched,  but  without  disclos- 
ing a  trace  of  the  prisoner.  Meanwhile  the  jury, 
who  had  found  the  defendant  guilty,  wondered  why 
their  verdict  was  not  received.  According  to  law, 
however,  all  the  proceedings  incident  to  a  trial  for 
felony  up  to  and  including  the  rendition  of  the  ver- 
dict must  take  place  in  the  presence  of  the  prisoner, 
and  in  this  case  his  voluntary  absence  compelled  the 
court  to  declare  a  *^  mistrial. ''  When  it  became  evi- 
dent that  the  defendant  was  unlikely  to  return,  terri- 
ble was  the  humiliation  of  the  court  officers,  who,  for 
a  few  days,  lived  in  terror  of  losing  their  official 
heads,  if  not  of  being  imprisoned  and  fined  for 
contempt. 

The  prisoner's  wife,  however,  had  been  present 
throughout  the  trial  in  the  court-room,  although,  as 
his  escape  was  entirely  extemporaneous,  she  was 
as  much  surprised  as  anybody  else  at  his  departure. 
After  the  discharge  of  the  jury  several  detectives 
followed  her  to  her  home  in  Hoboken.  Late  in  the 
evening  she  left  the  house  in  response  to  a  message 
and  met  her  husband  in  a  deserted  part  of  the  city, 
where  he  was  recaptured.  He  was  immediately 
brought  back  to  New  York  and  his  case  placed  once 
more  on  trial ;  but  this  time  he  pleaded  guilty.  From 


THE   VERDICT  243 

a  dramatic  point  of  view  it  is  to  be  regretted  that 
the  jury  at  the  first  trial  had  not  found  a  verdict 
of  **not  guilty.'' 

As  the  first  talesman  who  happens  to  be  selected 
for  the  jury  in  any  given  case  becomes  ipso  facto 
its  foreman,  amusing  incidents  sometimes  occur 
owing  to  his  inexperience.  Where  an  indictment 
contains  but  a  single  count,  as,  for  example,  *  ^  receiv- 
ing stolen  goods,"  the  foreman's  answer  to  the 
clerk's  interrogation  of,  **Do  you  find  the  prisoner 
guilty  or  not  guilty,"  is,  of  course,  simple  enough; 
he  answers  '* guilty"  or  **not  guilty,"  or  **not 
guilty,  with  a  recommendation  to  the  mercy  of  the 
court";  but  where  the  indictment  contains  either 
a  number  of  counts  set  forth  separately,  or  the 
crime  charged  is  of  such  a  character  that  the  jury 
may  find  in  a  lesser  degree,  some  confusion  is  apt 
to  result.  If,  for  example,  a  defendant  is  being 
tried  for  murder  in  the  first  degree  the  court  is 
obliged  to  submit,  under  the  law,  not  only  murder 
in  its  first  degree,  but  the  lesser  crimes  of  murder 
in  the  second  degree,  manslaughter  in  the  first  de- 
gree, manslaughter  in  the  second  degree  and  occa- 
sionally assault  in  one  or  more  degrees.  Sometimes 
the  foreman  forgets  entirely  what  he  was  going  to 
say  and  stands  staring,  open-mouthed,  until  the 
clerk  comes  to  his  assistance. 

In  a  case  where  the  court  charged  the  jury  that 
they  could  find  the  defendant  guilty  of  murder, 
manslaughter,  or  assault,  or  else  acquit  him  on  the 
ground  that  he  was  justified  in  taking  the  life  of 
the  deceased,  the  jury  retired  and  deliberated  for 
many  hours.  As  the  time  dragged  on  the  defendant 
became  convinced  that  he  was  to  be  convicted.    Late 


244         THE  PRISONER  AT  THE  BAR 

at  night  the  jury  informed  the  court  that  they  had 
agreed  upon  a  verdict.  They  filed  back  and  took 
their  places  in  the  box.  The  defendant  was  ar- 
raigned, pale  with  apprehension.    The  clerk  arose. 

*' Gentlemen  of  the  jury/'  said  he,  '^have  you 
agreed  upon  a  verdict  f 

**We  have,''  replied  the  foreman. 

**The  jury  will  rise,"  continued  the  clerk.  **The 
defendant  will  rise."    The  jury  and  prisoner  arose. 

**  Jurymen,  look  upon  the  prisoner.  Prisoner,  look 
upon  the  jury,"  continued  the  clerk,  and  turning 
to  the  foreman,  '^How  say  you?  Do  you  find  the 
defendant  guilty  or  not  guilty?" 

'* Guilty,"  stammered  the  foreman. 

The  defendant  uttered  a  loud  groan  and  collapsed 
into  the  arms  of  the  court  attendant  beside  him^ 

'^0/  justifiable  homicide/'  hastily  added  the  inex- 
perienced foreman.  In  spite  of  the  laughter  of  the 
rest  of  the  jurymen  and  the  smiles  of  the  court 
it  took  some  moments  to  convince  the  unnerved 
prisoner  that  he  was  not  to  be  electrocuted. 

In  a  recent  case  the  jury  returned  a  verdict  of 
^^  Pretty  nearly  guilty T' 

A  very  considerable  proportion  of  jury  trials  in 
criminal  cases  result  in  disagreements.  The  ques- 
tion of  reasonable  doubt  is  always  a  troublesome 
one,  and  even  where  all  the  jury  believe  the  defend- 
ant guilty,  as  likely  as  not  half  of  them  will  not  think 
that  they  are  convinced  beyond  what  they  regard 
as  a  reasonable  doubt.  On  this  account  many 
jurors  are  of  the  opinion  that  what  is  known  as  a 
Scotch  verdict,  or  a  verdict  of  **Not  proven," 
should  be  allowed.  The  writer  has  been  informed 
on  good  authority  that  in  one  of  the  recent  trials  of 


THE   VERDICT  245 

Nan  Patterson  eleven  of  the  twelve  jurymen  be- 
lieved her  guilty,  but  that  only  six  of  them  were  of 
the  opinion  that  they  were  so  convinced  beyond  a 
reasonable  doubt.  Had  the  Scotch  verdict  been  per- 
missible it  would  probably  have  been  rendered  in 
this  case.  Inasmuch  as  the  ordinary  American  petit 
jury  are  apt  to  go  outside  the  evidence  and  to  decide 
the  issue,  in  some  degree  at  least,  on  evidence  which 
properly  they  should  not  consider  at  all,  no  further 
loopholes  of  escape  from  rendering  a  verdict  one 
way  or  the  other  should  be  afforded  them.  Had 
we  the  Scotch  verdict,  instead  of  disagreeing  and 
giving  the  prosecution  the  opportunity  to  try  the 
defendant  over  again,  juries  would  probably  make 
use  of  it  in  all  cases  where  they  disliked  to  render 
a  verdict  in  accordance  with  the  evidencOc 

Juries  frequently  incorporate  with  the  verdict  of 
guilty  the  words  ^^with  a  recommendation  to 
mercy. '^  Of  course  this  is  no  part  of  the  verdict 
and  has  no  legal  effect  whatever.  It  is  merely  a 
formal  expression  of  opinion  that  in  the  eyes  of  the 
jury  it  would  be  well  for  the  court  to  treat  the 
defendant  with  leniency.  The  judge  usually  com- 
ments upon  this  recommendation  and  intimates  that 
he  will  give  it  consideration  in  imposing  sentence. 
It  is  not  likely,  however,  that  in  any  case  which  has 
appealed  to  the  sympathies  of  the  jury  the  court 
will  not  be  equally  moved.  In  point  of  fact,  did 
juries  fix  the  sentence  in  cases  where  they  found 
the  defendant  guilty  it  is  exceedingly  probable  that 
they  would  be  much  more  severe  than  the  bench. 
Most  jurors,  however,  are  under  the  impression  that 
**a  recommendation  to  mercy*'  is  an  integral  part 
of  their  verdict  and  it  frequently  does  yoeman's 


246         THE  PRISONEE  AT  THE  BAR 

service  by  inducing  a  juror  or  two  who  have  a  lin- 
gering feeling  that  perhaps  the  crime  has  not  been 
as  fully  proven  as  it  might  have  been,  or  that  maybe 
the  defendant  is  not  guilty  after  all  or  should 
be  given  another  chance,  to  agree  with  the  majority 
of  their  fellows.  The  writer  had  one  panel  of  jurors 
in  the  General  Sessions  which,  having  returned  a 
verdict  of  guilty  ** with  a  recommendation  to  mercy'* 
in  the  first  case  tried  during  the  month,  affixed  the 
same  recommendation  to  each  verdict  which  they 
rendered  thereafter.  It  is  his  impression  that  they 
convicted  every  prisoner  who  came  before  them,  so 
that  the  recommendation  must  in  many  cases  have 
seemed  to  the  hapless  defendant  but  a  hollow  mock- 
ery. There  is  even  a  traditional  case  where  a  jury 
in  a  murder  trial  found  the  defendant  guilty  of  mur- 
der in  the  first  degree,  *  *  with  a  strong  recommenda- 
tion to  the  mercy  of  the  court. ' ' 

Verdicts  of  murder  in  the  first  degree  are  com- 
paratively rare  and  are,  practically,  only  to  be 
expected  when  the  circumstances  surrounding  the 
crime  are  peculiarly  atrocious.  It  is  also  a  well- 
known  fact  that  juries  rarely  find  a  verdict  in  a 
degree  of  crime  higher  than  the  one  for  which  the 
majority  vote  upon  the  first  ballot.  For  example, 
if  on  the  first  ballot  the  jury  stands  five  for  murder 
in  the  first  degree,  six  for  murder  in  the  second 
degree  and  one  for  manslaughter  only  a  miracle 
could  account  for  a  final  verdict  of  murder  in  the 
first  degree.  In  other  words,  a  jury  will  almost 
never  work  up  their  verdict,  argument  invariably 
tending  to  work  them  down  to  a  lesser  degree.  Most 
cases  of  what  is  technically  murder  in  the  first  degree 
result  in  verdicts  of  murder  in  the  second  degree,  and 


THE   VERDICT  247 

most  cases  of  murder  in  the  second  degree  result  in 
verdicts  of  manslaughter. 

The  jury  having  rendered  a  verdict  of  conviction, 
say  of  murder  in  the  first  degree,  there  remains  to 
counsel  but  one  last  act  which  he  can  perform  in 
his  client  ^s  behalf,  namely,  to  demand  that  the  jury 
be  polled.  This  must  be  done  upon  the  requirement 
of  either  the  defendant  or  the  People,  in  which  case, 
**they  must  be  severally  asked  whether  it  is  their 
verdict;  and  if  any  one  answer  in  the  negative,  the 
jury  must  be  sent  out  for  further  deliberation. ' ' 
The  writer  has  never  heard  of  a  jury  which,  on 
being  polled,  showed  a  disagreement.  It  is  not  un- 
usual, however,  as  the  roll  is  called  to  see  various 
members  of  the  jury  look  apprehensively  towards 
one  of  their  number  who  has  evidently  put  up  in  the 
jury-room  a  hard  fight  for  a  lesser  degree  and  may 
be  *  *  of  the  same  opinion  still. ' '  A  prosecutor  always 
breathes  more  freely  when  the  ordeal  is  over,  and 
probably  experiences  during  the  process  very  much 
the  same  kind  of  emotion  as  that  felt  by  the  bride- 
groom at  the  altar  as  he  listens  apprehensively  at 
the  conclusion  of  the  clergyman 's  announcement  that 
*'if  any  one  has  any  just  cause,  etc.,  let  him  now 
speak  or  forever  hold  his  peace. '^ 

Defendants  who  are  convicted  rarely  show  any 
emotion  when  receiving  the  verdict.  This  is  of 
course  to  be  expected,  as  the  defendant,  if  guilty, 
has  probably  been  anticipating  that  he  will  be  so 
found  by  the  jury,  and  has  steeled  himself  for  the 
occasion,  while  an  innocent  man  is  practically 
never  convicted.  Hundreds  of  defendants,  how- 
ever, who  confidently  expect  to  be  convicted,  are 
acquitted  through  the  leniency  of  the  jury.    Their 


248         THE  PEISONER  AT  THE  BAR 

exclamations  of  gratification  and  joy  upon  such  occa- 
sions  are  frequently  most  amusing.  Such  a  defend- 
ant not  seldom  thanks  the  court  and  the  jury  for 
their  kindness,  and  in  some  cases  his  thanks  are 
certainly  due  to  those  who  have  violated  the  letter 
and  spirit  of  their  oaths  in  acquitting  him.  The 
writer  recalls  one  old  colored  mammy  who,  on  being 
acquitted  of  stealing  some  wash  which  had  been  con- 
fided to  her  care,  curtsied  in  all  directions  and  re- 
marked, **Ah  thanks  your  honor,  an'  Ah  t'anks 
your  Honors,  gentlemen  ob  de  jury,  one  an'  all." 
An  Irishman,  who  had  been  but  a  few  weeks  in  this 
country,  and  who  had  been  acquitted  on  the  charge 
of  stealing  a  truck  and  horse  which  had  been  left  in 
his  charge,  on  learning  of  his  acquittal  invited  the 
jury  collectively  in  a  loud  voice  to  come  across  the 
street  and  have  a  drink. 

Before  the  jury  is  discharged,  however,  and  the 
prisoner  remanded  to  the  Tombs  for  sentence,  he  is 
required  to  answer  certain  questions  relative  to  his 
age,  parentage,  education,  previous  convictions,  etc. 
If  the  spectator  is  fortunate  enough  to  be  able  to 
forget  the  solemnity  of  what  has  taken  place,  he  may 
well  be  entertained,  not  only  at  the  answers  given  by 
the  defendant,  but  at  the  method  of  conducting  the 
examination  by  the  court  officer.  The  clerk  takes 
the  indictment  and,  with  a  large  rubber  die,  stamps 
upon  it  the  statement  that  the  defendant,  on  being 
arraigned,  made  answer  to  the  questions  put  to  him, 
as  follows: 

Counsel    Assigned    

Sex    

Age    

Nativity    

Residence    » . . . .  i 


THE   VEEDICT  249 

Occupation   

Married  or  Single   

Education  

Religious   Instruction    

Parents  Living    

Temperate  or  Intemperate   

Before  Convicted    

Of  course,  the  court  officer  who  repeats  the  pris- 
oner's answers  to  the  clerk  is  usually  so  familiar 
with  the  order  of  the  questions  as  to  render  any 
vocal  action  upon  the  part  of  the  clerk  unnecessary. 
The  officer  stands  by  the  prisoner  and,  leaning  over, 
asks  in  a  low  tone  how  old  he  is,  if  his  parents  are 
living,  if  he  is  addicted  to  the  use  of  liquor,  if  he  has 
had  any  religious  instruction,  or  if  he  has  been  pre- 
viously convicted  of  crime.  It  is  really  the  officer  to 
whom  the  defendant  makes  his  replies,  the  former 
repeating  them  in  a  loud  voice  to  the  clerk.  In 
some  courts  the  clerk  does  not  put  the  questions  at 
all,  but  the  officer  merely  gives  in  their  order  the 
answers  of  the  defendant.  For  example,  in  Part  II, 
upon  the  rendition  of  a  verdict  one  will  see  Mr. 
Samuel  Wolff,  the  clerk,  stamp  the  indictment,  dip 
his  pen  in  the  ink,  turn  to  the  officer  of  the  court  and 
say,  ''All  ready r' 

The  officer  answers,  ''Yes." 

A  subdued  conversation  then  takes  place  between 
the  prisoner  and  the  officer,  who  raises  his  voice  and 
answers : 

' '  Twenty-nine ;  --  U.  S.  —  No ; None ;  —  Sin- 
gle —  Yes;  —  No. — "  All  of  which  answers  are 
properly  recorded  opposite  the  appropriate  ques- 
tions upon  the  indictment. 

All  this  is  a  little  startling  to  the  juror  who  has 
rendered  his  first  verdict.  He  has  no  idea  at  all  of 
what  is  going  on.    The  officer  returns,  if  possible,  a 


250         THE  PEISONEE  AT  THE  BAR 

categorical  reply  to  each  question,  but  frequently 
prisoners  make  statements  which  are  of  course 
irrelevant  in  character  and  are  not  incorporated  in 
the  answer.  At  times  it  requires  quite  a  little  cross- 
examining  on  the  part  of  the  ofi&cer  to  determine 
whether  or  not  the  defendant  is  temperate  or  intem- 
perate, or  whether  he  has  really  ever  been  convicted 
of  crime  theretofore.  Any  one  who  could  overhear 
these  colloquies  would  be  well  repaid  for  his  trou- 
ble. The  writer  knows  of  one  officer  of  a  some- 
what waggish  disposition  who,  when  he  approaches 
the  interrogation  directed  towards  the  prisoner's 
usual  habits,  first  puts  the  question  in  its  proper 
form: 

**Are  you  temperate  or  intemperate?'' 

The  prisoner,  who  perhaps  does  not  understand 
these  terms,  or,  at  any  rate,  is  a  little  doubtful  him- 
self as  to  his  usual  condition,  stammers  and  hesi- 
tates. The  officer,  dropping  his  voice,  remarks,  con- 
fidentially : 

**Say,  do  you  ever  take  a  drink?" 

**Sure,"  says  the  defendant,  without  hesitation. 

^* Moderate/'  shouts  the  officer  to  the  clerk. 

A  certain  element  of  humor  enters  into  the  situa- 
tion when  a  defendant  convicted  of  bigamy  is  asked 
if  he  is  married.  The  answer  **Yes"  is  generally 
accompanied  by  an  irrepressible  grin. 

There  used  to  be  an  old  court  officer  in  one  of  the 
parts  of  the  General  Sessions  a  few  years  ago  who 
was  a  loyal  son  of  Old  Erin  and  a  devout  member  of 
the  Roman  Church. 

On  one  occasion,  a  defendant  having  been  found 
guilty  he  was  arraigned  at  the  bar  for  the  purpose 
of  having  his  pedigree  taken,  old  Flaherty  officia- 


THE   VERDICT  251 

ting     The  conversation  which  ensued  may  be  worth 
preservation. 

Flaherty  to  Defendant:  **Say,  me  friend,  where 
was  ye  bornT' 
Defendant  to  Flaherty:  ** Lowell,  Mass." 
Flaherty  to  Clerk:  ''Lowell,  Mass." 
Flaherty  to  Defendant  :     '*  Where  do  yez  hang 
out?" 
Defendant :  *  *  Nowhere. ' ' 
Flaherty  to  Clerk:  ''Ain't  got  none/' 
Flaherty  to  Defendant:  **Phat  do  yez  do  fer  a 
livin'f" 
Defendant:  '^Nothin'." 
Flaherty  to  Clerk:  " AinH  got  none,*' 
Flaherty  to  Defendant:  **Are  ye  married?" 
Defendant:  **No,— thank  God." 
Flaherty  to  Clerk:  "He  says  'No,  thanTc  God!'  " 
Flaherty  to  Defendant:  **Ever  receive  any  pre- 
vious religious  instruction?" 
Defendant :  ' '  How 's  that  ?  " 
Flaherty  to  Defendant:  **Phat's  yer  religion?" 
Defendant:  ** Don't  believe  in  nothin'." 
Flaherty  to  Clerk  (loudly):  *^  PROTESTANT  I" 

For  a  convict  to  give  under  oath  false  answers  to 
the  questions  thus  put  to  him  is,  of  course,  perjury. 
It  is  frequently  of  no  small  importance  for  a  pris- 
oner to  conceal  his  identity,  or  at  least  his  record. 
But  if  a  Bible  is  thrust  into  his  right  hand  he  is  loath 
to  put  himself  within  the  statute  governing  false 
swearing,  for  the  chances  are  all  in  favor  of  his 
being  found  out,  in  which  case  his  punishment  will 
be  severe.  The  writer  recalls  a  dramatic  incident 
of  a  man   who  endeavored  to  prevent  his  past 


252         THE  PRISONER  AT  THE  BAR 

offences  coining  to  the  knowledge  of  the  judge.  He 
bore,  however,  all  the  ear-marks  of  an  ex-convict, 
and  the  court  became  suspicious  that  all  was  not 
right.  He  had  just  been  convicted  of  stealing  a 
purse.  The  jury  had  remained  out  until  eleven 
o'clock  at  night  and  the  court-room  was  practically 
deserted.  The  prisoner  was  placed  before  the  bar. 
We  will  call  him  James  Graham.  The  clerk  put  the 
usual  questions  and  then  inquired : 

**Have  you  ever  been  convicted  before?'' 

*^No,"  answered  the  prisoner  in  a  low  voice. 

There  was  a  long  pause,  and  then  the  judge,  look- 
ing down  intently  from  the  bench,  said: 

*' Graham,  is  that  the  truth  T' 

**Yes,  sir,''  replied  the  prisoner. 

**Are  you  quite  sure?"  insisted  the  court. 

**Yes,  sir." 

*  *  Swear  him ! ' '  ordered  the  judge. 

The  officer  started  to  place  the  Bible  in  Graham's 
hand,  but  he  refused  to  take  it. 

**No,  no,  I  can't!"  he  whispered.  **I  can't — ^I — I 
— it's  no  use!"  he  added. 

**When  were  you  convicted?" 

**I  served  six  months  for  petty  larceny  about  five 
years  ago." 

**Is  that  all?" 

**Yes,  sir." 

'*Are  you  sure?" 

''Yes,  sir." 

''Quite  sure?    Think  again." 

"Yes,  sir." 

' '  Swear  him ! ' ' 

Again  the  book  was  placed  in  his  hand  and  again 
it  was  declined. 


THE   VERDICT  253 

**I  served  three  years  in  Charlestown  for  larceny, 
and  was  discharged  two  months  ago." 

^^Is  that  alir' 

**0  God!  Isn't  that  enough T'  suddenly  groaned 
the  prisoner,  breaking  down  completely.  *^No,  sir, 
it  isn't  all!  It's  always  been  the  same  old  story! 
Concord,  Joliet,  Elmira,  Springfield,  Sing  Sing, 
Charlestown — Yes,  six  times.  Twelve  years! — I'm 
a  jail  hirdy^ 

Before  rendering  a  verdict  the  members  of  almost 
every  jury  take  the  opportunity  in  the  jury-room  to 
stretch  their  legs  and  satisfy  their  craving  to  smoke. 
Juries  rarely  return  in  less  time  than  it  takes  to 
bum  a  cigar.  While  this  may  torture  the  prisoner 
\t  would  seem  a  fairly  earned  perquisite  on  the  part 
of  his  judges.  Some  jurors  are  instinctively,  and  a 
few  are  actually  lawyers.  These  rarely  add  much 
to  the  general  usefulness  of  the  panel.  Jurymen 
not  infrequently  seize  the  opportunity  to  display 
their  oratorical  ability,  since  their  audience  cannot 
get  away  and  must  perforce  hear  them  out.  The 
writer  recalls  one  instance  where  in  a  well-known 
extortion  case  an  enthusiastic  talesman  made  a 
digest  of  the  speeches  of  counsel  for  the  defence 
and  for  the  prosecution  and  then  prepared  a  long  ^ 
harangue  of  his  own  which  he  committed  to  memory. 
When  the  jury  were  safely  locked  into  their  council 
chamber  this  self-sacrificing  gentleman  arose  and 
began,  **In  this  case  the  defence  claims,  thus  and 
so."  After  he  had  repeated  practically  in  toto  the 
argument  of  the  defence  he  got  his  second  wind  and 
continued,  **0n  the  other  hand,  the  People  assert, 
thus  and  so."  At  the  end  of  about  an  hour  he  had 
reached  his  own  humble  views  of  the  case,  which  he 


254         THE  PEISONER  AT  THE  BAR 

expanded  at  great  length,  ending  with  a  peroration 
in  which  the  great  American  eagle  could  be  heard 
screaming  all  the  way  into  the  court-room.  The 
jury,  probably  out  of  sheer  fatigue,  took  but  a  single 
vote  and  found  the  defendant  guilty.  The  orator 
to  this  day  claims  that  he  **did  it.'' 

While  the  deliberations  of  the  jury  are  theoreti- 
cally secret,  the  rooms  in  which  they  are  confined 
are  often  so  located  with  reference  to  corridors,  re- 
tiring rooms,  etc.,  that  officers  on  duty,  turnkeys, 
and  other  persons  are  occasionally  made  involun- 
tary eavesdroppers.  It  is  said  that  in  other  and 
more  barbarous  times  interested  parties  would  lurk 
near  by  in  order  to  get  an  idea  of  how  the  wind  was 
blowing.  There  is  a  story  for  which  the  writer  as- 
sumes no  responsibility  that  ten  or  fifteen  years  ago 
a  noted  prosecutor  was  accustomed  to  follow  the 
jury  out,  climb  upon  a  ladder,  and  listen  at  the 
transom  to  their  arguments  and  comments;  and 
there  is  also  a  report,  which  perhaps  is  but  a  fable, 
that  there  was  a  knot-hole  in  the  jury-room  of  the 
old  *  *  Brownstone ' '  building  from  which  the  plug 
was  regularly  removed  to  allow  of  similar  surrepti- 
tious observations.  The  rumors  which  come  from 
the  direction  of  the  jury-room  are  quite  as  apt  to  be 
incorrect  as  accurate,  and  neither  prosecutor  nor 
prisoner  really  knows  what  is  the  result  of  the  jury's 
deliberations  until  the  foreman's  word  ends  the 
suspense. 

Many  strange  and  amusing  stories  are  told  of 
how  certain  historic  verdicts  in  criminal  cases  were 
reached.  Perhaps  the  most  famous  is  that  of  the 
trial  of  the  first  indictment  which  followed  the 
robbery  of  the  Manhattan  Bank.    The  case  was 


THE   VERDICT  255 

tried  before  Judge  Cowing  in  the  General  Ses- 
sions, and  after  a  speedy,  but  conclusive,  trial  the 
jury  retired.  A  vote,  which  was  immediately  taken, 
showed  that  they  stood  eleven  to  one  for  conviction. 
The  twelfth  juror  was  obstinate  and  no  progress 
whatever  was  made  by  the  others.  The  situation 
remained  unchanged  during  the  night  and  up  to 
twelve  o'clock  of  the  next  day,  which  happened  to 
be  a  Saturday.  At  that  hour  Judge  Cowing  sent 
word  that  he  was  going  downtown  and  would  not 
return  until  two  o'clock.  In  some  way  the  jury  got 
the  idea  that  the  judge  intended  to  lock  them  up 
until  Monday  if  they  did  not  agree.  They  accord- 
ingly asked  for  five  minutes  more  before  the  judge 
left  the  building.  This  was  granted  and  at  the  end 
of  that  time  they  announced  that  they  had  agreed. 
Into  court  they  filedo 

*^Have  you  agreed  upon  a  verdict  T'  asked  the 
clerk. 

**We  have,"  replied  the  foreman. 

* ^ How  say  you?  Do  you  find  the  defendant  guilty 
or  not  guilty  r' 

^'Not  guilty,"  answered  the  foreman  defiantly 
The  defendant,  who  was  as  guilty  a  man  as  ever  was 
brought  to  the  bar  of  justice,  almost  collapsed  from 
astonishment,  and  the  judge  gave  the  jury  a  frank 
piece  of  his  mind  in  no  uncertain  language.  Eather 
than  suffer  any  further  inconvenience  this  high- 
minded  jury  had  simply  faced  about  and  voted  to 
acquit. 

There  are  some  cases,  however,  where  one  strong- 
minded  and  able  juryman  has  swung  the  whole  body 
to  his  way  of  thinking  after  a  vote  of  eleven  against 
him,  and  this  is  as  true  of  verdicts  of  conviction  as 


256         THE  PEISONEE  AT  THE  BAR 

of  acquittal.  Few  jurors,  however,  can,  as  a  rule, 
stand  out  against  the  assertions  and  incriminations 
of  their  fellows.  Most  of  them  are  easy-going  and 
like  to  be  led  by  a  strong  hand.  A  positive  stand 
taken  by  a  fellow  talesman  will  often  bring  them  to 
his  views  when  they  are  really  inclined  to  be  in 
doubt.  If  the  flag  is  raised  they  will  quickly  rally 
to  it,  but  they  will  never  reach  the  point  where  they 
would  be  willing  to  elevate  it  of  their  own  accord. 
An  experienced  and  highly  intelligent  juryman  once 
told  the  writer  that  the  first  thing  he  always  did 
when  the  jury  had  retired,  whether  he  was  the  fore- 
man or  not,  was  to  stand  up  at  the  end  of  the  table 
and  say: 

**  Gentlemen,  this  man  is  guilty  [or  innocent,  as 
the  case  might  be] !  The  sooner  we  say  so  the  bet- 
ter, hut  my  mind  is  made  up/^ 

In  this  way  he  invariably  secured  at  the  outset 
the  support  and  co-operation  of  a  majority  of  the 
jury. 

In  capital  cases  where  the  prisoner's  life  hangs  in 
the  balance  there  will  always  be  found  in  the  first 
vote  a  few  blank  ballots.  These  are  cast,  as  the 
expression  is,  *^to  provoke  discussion.''  Shrewd 
old  jurors,  realizing  that  no  man  can  convince 
another  half  so  well  as  that  other  can  convince  him- 
self, will  often  vote  for  *^not  guilty''  in  order  to  get 
their  fellows  worked  up  to  a  white  heat  of  intel- 
lectual frenzy  in  the  effort  to  bring  them  over.  There 
is  many  a  wily  Odysseus  among  the  variegated  per- 
sonalities of  a  jury. 

**My  first  jury  trial,"  said  one  of  the  judges  of 
the  General  Sessions  recently,  *  *  occurred  when  I  was 
a  very  young  man  and  had  just  been  admitted  to  the 


THE   VEEDICT  257 

bar.  It  was  my  initial  appearance  in  a  court  of  jus- 
tice. However,  I  threw  out  my  chest  and  tried  to 
make  the  jury  think  I  was  an  old  hand  at  the  bus- 
iness, by  objecting  to  almost  every  question  and 
taking  exceptions  by  the  score.  My  client  was  an 
old  woman  who  had  been  illegally  ejected,  or  who 
claimed  to  have  been  illegally  ejected,  by  the  agent 
of  a  tenement  house  which  belonged  to  Mr.  W.  D. 
Sloane.  Of  course,  I  don't  suppose  Mr.  Sloane 
ever  heard  of  the  incident,  but  I  was  suing  him 
for  damages  and  put  in  my  case  with  a  great  deal  of 
vigor.  The  lawyer  for  the  defence  was  a  big,  good- 
natured  man  who  did  not  seem  to  care  very  much 
which  way  the  jury  decided  the  case.  The  judge 
charged  and  the  jury  retired.  They  were  gone  a 
very  long  time.  At  last  an  officer  appeared  with  a 
slip  of  paper.  The  judge  beckoned  the  lawyer  for 
the  other  side  and  myself  to  the  bench  and  showed 
us  the  jury's  message. 

**  *We  want  a  bottle  of  whiskey  and  a  box  of 
cigars,'  it  read,  and  was  signed,  *  William  Smith, 
Foreman.  * 

**  *Let  'em  have  them!'  remarked  the  good- 
natured  lawyer.  *I  don't  blame  'em  for  being 
thirsty. ' 

**  *I  don't  know,'  I  replied.  *It  does  not  seem  to 
me  that  whiskey  would  help  them  to  decide  the  facts 
any  more  clearly!' 

**  *0f  course,  if  Mr.  does  not  agree  to  it!' 

exclaimed  the  lawyer,  *I  have  nothing  to  say !'  Then 
he  turned  away  and  the  judge  whispered  in  my  ear : 

*  *  *  Young  man,  I  should  advise  you  to  let  these  re- 
freshments go  into  the  jury-room.  You  have  not 
had  a  great  deal  of  experience  and  probably  do  not 


258         THE  PEISONER  AT  THE  BAR 

appreciate  the  effect  which  a  denial  of  their  request 
may  have  upon  the  jurors.  Take  a  quiet  tip  from 
me  and  let  the  whiskey  go  in. ' 

^'  ^All  right,  your  Honor,'  said  I.  *I  bow  to  your 
Honor's  long  acquaintance  with  men  and  your  ex- 
perience at  the  bar — of  justice.' 

**  Well,  the  whiskey  and  cigars  went  in,  and  I  could 
see  as  the  officer  brought  them  through  the  court- 
room that  the  whiskey  was  the  very  best  King  Wil- 
liam and  the  cigars  were  Havana  perfectos.  I  won- 
dered with  some  misgivings  who  was  paying  for 
them. 

**In  about  an  hour  the  jury  filed  in  flushed  and 
happy  and  rendered  a  verdict  in  favor  of  Mr.  Sloane. 
Some  time  afterwards  I  happened  to  be  in  the  court- 
room and  learned  from  the  officer  that  the  jury  had 
stood  eleven  to  one  in  my  favor  for  over  three  hours. 
The  foreman,  the  only  one  against  me,  had  filially 
remarked  that  he  was  thirsty  and  had  offered  to 
treat  the  rest  of  the  jury.  In  less  than  an  hour  after 
the  refreshments  had  arrived  the  other  eleven  came 
over  and  decided  that  Mr.  Sloane  was  in  the  right. ' ' 

Another  judge  tells  of  an  experience  of  his  when 
serving  upon  a  jury  in  Ireland.  The  case  over  they 
retired  to  the  jury-room  and  found  that  they  stood 
eleven  to  one  for  acquittal,  but  that  one  happened 
to  be  a  very  complacent  old  gentleman  in  a  billy- 
cock hat  who,  with  his  chin  resting  upon  the  head  of 
a  thick  bamboo  cane,  announced  defiantly  that  he 
was  ready  to  stay  there  as  long  as  anybody.  The 
hours  dragged  slowly  by,  evening  drew  on,  and  still 
the  old  gentleman  obstinately  held  out.  The  jurors 
disposed  their  weary  bodies  as  best  they  could  along 
the  floor  and  the  hard  benches,  and  prepared  to 


THE   VEEDICT  259 

make  a  night  of  it.  From  time  to  time  the  old  gen- 
tleman would  contemplatively  suck  the  head  of  his 
bamboo  cane.  Finally  he  fell  fast  asleep  and  the 
cane  fell  heavily  to  the  floor.  Then  one  of  the  jurors 
picked  it  up  and  found  to  his  surprise  that  it  was 
hollow  and  filled  with  good  old  Irish  whiskey. 
They  passed  the  cane  around,  relieved  it  of  its  con- 
tents, and  then  awoke  the  owner.  Slowly  he  lifted 
the  cane  to  his  mouth,  sucked  ineffectually  for  a 
moment,  looked  at  his  watch  and  then  arose  with 
the  announcement : 

**B'ys!  I^m  afther  changin'  me  moind!'' 
A  recent  trial,  Donohue  ^5.  The  New  York,  New 
Haven  and  Hartford  Eailroad,  illustrates  the 
vagaries  of  individuals  which  may  seriously  inter- 
fere with  the  course  of  justice.  The  judge  had  been 
particularly  careful  to  elucidate  the  point  of  law 
which  the  jury  were  to  apply  to  the  facts  as  they 
found  them.  The  jury  unanimously  agreed  that  the 
facts  were  thus  and  so,  but  one  of  their  number  re- 
fused to  follow  the  law  as  laid  down  by  the  court. 
At  first  he  insisted  that  the  judge  had  charged  dif- 
ferently, but  it  soon  became  obvious  that  this  was 
not  the  true  cause  of  his  indecision. 

**Well,'*  exclaimed  the  foreman  at  last,  on  the 
verge  of  distraction,  **  should  we  go  back  into  court 
and  the  judge  should  instruct  you  that  what  we  say 
is  the  law,  would  you  find  a  verdict  then?'' 

The  juryman  hesitated  and  then  announced  with 
deliberation : 

**No;  not  until  I  had  consulted  my  attorney." 
A  frankly  unscrupulous  member  of  the  criminal 
bar  tells  the  following  story  at  his  own  expense. 
His  client  was  indicted  for  murder  and  on  the  evi- 


260         THE  PEISONEE  AT  THE  BAR 

dence  apparently  guilty.  The  lawyer 's  only  chance, 
as  he  thought,  lay  in  trying  to  ^^work  it  down''  to 
manslaughter,  which  would  get  his  client  off  with 
twenty  years'  imprisonment.  Accordingly  he  told 
his  clerk  to  become  friendly  with  the  jurymen,  treat 
them  to  drinks,  and  see  what  he  could  do.  The  clerk 
reported  that  he  had  become  very  thick  with  the 
twelfth  juror,  an  old  Irishman,  who  had  promised 
to  **hold  out  for  manslaughter."  The  lawyer  told 
his  client,  and  both  ceased  to  worry  about  the  result, 
as  death  no  longer  stared  the  prisoner  in  the  face. 
The  jury  retired  and  remained  out  twenty-three 
hours.  At  the  end  of  that  time,  tired,  dishevelled, 
exasperated,  they  filed  into  court  and  returned  a 
verdict  of  manslaughter.  The  lawyer  warmly  con- 
gratulated his  client.  As  the  jury  were  separating 
the  old  Irishman  leaned  over  to  the  lawyer  and 
exultantly  whispered : 

**Bedad,  I  had  th'  divil  av  a  time  av  it !    Elivin  o' 
thim  were  for  lettin'  Mm  go  entirely!** 


CHAPTEE  XIV 

THE  SENTENCE 

**What  have  you  to  say  why  judgment  of  the 
court  should  not  be  pronounced  against  you  accord- 
ing to  IsiwV^ 

With  these  words  begins  the  final  chapter  of  the 
convict's  history.  He  has  been  arraigned  for  the 
last  time  at  the  bar  of  justice,  after  a  jury  of  his 
peers  has  declared  him  ** guilty/'  and  now  awaits 
his  sentence. 

The  judge  who  presides  at  the  trial  of  a  criminal 
case  does  but  begin  his  labors  when  he  receives  the 
jury's  verdict.  If  he  be  a  man  of  sensibilities  the 
strain  of  a  trial  is  as  nothing  compared  with  the  re- 
sponsibility of  determining  whether  the  defendant 
shall  be  let  go  free  under  a  ** suspended"  sentence 
or  ordered  to  prison.  No  one  appreciates  the  horror 
of  prison  life  or  its  effect  upon  the  individual  better 
than  the  judge  himself,  and  he  may  pass  many  a 
sleepless  night  before  sentencing  a  man  whose  cir- 
cumstances and  whose  years  suggest  the  possibility 
of  reformation. 

Where  the  defendant  has  been  found  guilty  of  mur- 
der in  any  of  its  degrees  the  judge  is,  of  course, 
relieved  of  the  responsibility  of  determining  the  sen- 
tence, which  is  fixed  by  law,  and  the  interrogation  of 
the  clerk  must  seem  but  a  mockery  to  the  prisoner, 
who  knows  that,  whatever  he  may  say  in  his  own 

261 


262         THE  PEISONER  AT  THE  BAE 

behalf,  the  judgment  of  the  court  will  be  the  same. 
For  this  reason  counsel  rarely  address  the  court 
upon  the  sentence  in  such  a  case,  but  sometimes  the 
prisoner  himself  seeks  a  last  public  opportunity  to 
assert  his  innocence  or  proclaim  his  repentance. 

On  Saturday  morning,  March  21,  1829,  Richard 
Johnson,  convicted  of  the  murder  of  Ursula  New- 
man, was  brought  to  the  bar  of  the  New  York  Court 
of  Oyer  and  Terminer,  and  was  asked  what  he  had 
to  say  why  judgment  of  death  should  not  be  pro- 
nounced against  him  according  to  law.  In  the  faded 
ink  of  the  records  of  the  General  Sessions  is  in- 
scribed the  following: 

The  prisoner  replies: 

If  your  Honor  please.  I  am  asked  what  I  have  to  say 
why  judgment  of  death  should  not  be  pronounced  against 
me?  To  this  I  reply — To  the  judgment  of  the  law,  nothing. 
A  jury  of  my  country  has  pronounced  me  guilty;  and  there 
remains  no  discretion  with  the  court  but  to  pronounce  upon 
me  the  sentence  of  the  law.  But  to  the  judgment  of  the 
world  I  have  much  to  say.  I  have  been  convicted  of  a  crime 
the  bare  recital  of  which  causes  humanity  to  shudder. 
And  it  is  a  duty  which  I  owe  to  myself  while  living,  and  to 
my  memory  when  dead  that  the  circumstances  of  my  offence 
should  be  fully  explained.  Before  entering  into  the  detail, 
I  must  take  this  public  opportunity  in  the  name  of  that 
omniscient  and  all-merciful  Being  who  will  hereafter  pro- 
nounce his  judgment,  alike  upon  my  judges  &  myself, 
of  disclaiming  any  knowledge  of  the  transactions  of  that 
fatal  20th  of  November.  I  do  not  mean  to  impugn  the 
decision  of  the  jury;  the  movements  of  the  mind  were 
beyond  their  power  to  penetrate;  and  hard  as  is  my  fate 
I  humbly  bow  to  their  verdict.  I  cannot  here  enter  fully 
into  the  details  of  my  intimacy  with  the  unfortunate  cause 
of  my  present  awful  situation.  Duped  and  betrayed  as  I 
have  been  into  sorrow  and  bitter  despair,  and  lastly  involun- 
tary crime  I  am  unwilling  while  living  to  indulge  in  unavail- 
ing reproaches.  In  life  the  deceased  was  the  object  of  my 
tenderest  affection.  An  affection  that  her  own  unkind 
conduct  seemed  to  inflame,  and  that,  baffled  in  its  honor- 


THE   SENTENCE  263 

able  purpose — expelled  reason  from  her  throne^  and,  in  its 
absence,  led  to  the  commission  of  the  offence,  for  which 
I  am  now  to  satisfy  the  offended  community  by  my  own 
life.  Was  I  conscious  of  any  moral  guilt,  at  this  result 
I  should  not  repine.  Accustomed  throughout  my  life  to 
respect  the  law,  I  have  not  now  to  learn  that  the  blood  of  the 
murderer  is  alike  a  propitiating  sacrifice  to  the  laws  of  God 
and  man.  Convicted  of  the  legal  crime  I  know  my  fate. 
For  the  moral  offence  I  have  to  answer  to  my  conscience 
and  my  God;  and  that  innate  monitor  tells  me,  that  I  stand 
before  this  court  and  this  community  a  legal  but  not  a  moral 
mxu"derer.  To  my  counsel  who  have  so  ably  though  vainly 
made  my  defence,  I  tender  my  warmest  thanks.  Of  the 
court  I  have  but  one  request  to  make,  that  the  period  al- 
lowed me  to  prepare  for  my  impending  fate  may  be  as  long 
as  the  law  will  permit. 
The  sentence  of  the  court  was  then  pronounced. 

Compare  this  solemn  and  thrilling  declaration 
with  what  occurred  upon  the  sentence  of  Dr.  Carlyle 
W.  Harris,  convicted  of  the  murder  of  his  girl-wife 
by  the  administration  of  morphine  capsules  which 
he  compounded  and  furnished  to  her.  He  had  mar- 
ried her  secretly  under  an  assumed  name  and  in  all 
probability  had  never  intended  to  recognize  her  as 
his  wife.  Events  finally  rendered  it  impossible  for 
him  to  conceal  the  marriage  longer,  and,  realizing 
this,  he  procured  for  her  the  medicine  which  caused 
her  death.  Harris  was  a  gentleman, — or  rather  he 
was  a  very  debonair,  nonchalant,  and  brazen  imi- 
tation of  one.  Throughout  his  trial  he  had  pre- 
served an  absolutely  unruffled  exterior,  chatting 
affably  with  counsel  and  court  attendants,  and  re- 
ceiving the  verdict  with  undiminished  equanimity. 
On  the  day  set  for  his  sentence  he  came  into  court 
with  the  easy  and  gracious  manner  of  a  young  man 
paying  an  afternoon  call.  He  was  arraigned  at  the 
bar  and  the  Eecorder   [Smyth]   proceeded  to  re- 


264         THE  PRISONER  AT  THE  BAR 

hearse  the  history  of  his  terrible  crime  and  stigma- 
tize the  loathsome  character  of  his  act.  Harris 
listened  politely,  and  apparently  endeavored  to 
show  a  considerable  interest  in  his  remarks.  Then 
the  Recorder  made  some  slight  error  in  giving  a 
date. 

^  *  Pardon  me,  your  Honor, ' '  interrupted  the  blithe 
defendant,  *'it  was  the  eighteenth  and  not  the  nine- 
teenth  ''  and  corrected  him. 

The  Recorder  frowned  and  replied  with  dignity. 

*  ^  That  is  a  matter  of  slight  importance !  * ' 

^*I  beg  yonr  Honor's  pardon,"  returned  Harris 
flippantly;  *^you  see,  I  have  never  been  sentenced 
to  death  before,  and  am  not  as  familiar  with  the  pro- 
cedure as  might  be.'' 

Unpleasant  as  is  the  duty  of  the  prosecutor  who 
is  obliged  to  move  that  the  sentence  of  death  be  pro- 
nounced, it  is  less  terrible  than  listening  to  the  few 
simple  but  hopeless  words  that  doom  a  convict  to 
life  imprisonment.  The  murderer  milst  die;  but  it 
will  soon  be  over.  The  ghost  of  his  victim  will  in  a 
few  weeks  cease  to  haunt  his  dreams.  But  the 
** lifer"!  Who  can  picture  the  horror  of  a  lifetime 
of  repentance  or  of  mocking  remorselessness  ? 
** Civilly  dead,"  he  is  doomed  to  drag  out  his  weary 
years  in  an  earthly  tomb,  a  silent,  forgotten  crea- 
ture, numbered  like  a  human  specimen,  enduring  all 
the  tortures  of  purgatory  until  the  end  seems  a 
far  distant  haven  of  oblivion.  The  court-room 
echoes,  like  the  empty  future  of  the  white-faced 
prisoner,  to  the  dull  fall  of  the  words  upon  his  bar- 
ren soul — ''for  the  rest  of  your  natural  life."  The 
listener  shudders.  **God  grant  that  it  be  short!" 
he  murmurs,  then  looks  away. 


THE   SENTENCE  265 

Of  course,  in  the  seventeenth  century  and  early  in 
the  eighteenth  all  felonies  were  punishable,  not  only 
in  England  but  in  America,  by  death.  When  the 
severity  of  punishment  began  to  be  abated  and  im- 
prisonment substituted  for  the  extreme  penalty,  all 
sentences  were  for  a  fixed  and  definite  term,  and  the 
only  way  that  the  convict  could  obtain  release  or 
secure  the  modification  of  his  sentence  was  by  par- 
don from  the  supreme  executive  authority  of  the 
country. 

Sometimes  a  ray  of  sunshine  illumines  the  dreary 
pages  of  these  parchment-bound  volumes,  the  stiff 
phraseology  of  the  crabbed  entries  failing  to  obscure 
it.  For  example,  on  Monday  morning,  March  29, 
1784,  **The  Court  met  pursuant  to  adjournment" 
and  was  ** opened  by  proclamation.''  The  grand 
jury  came  into  court  and  presented  an  indictment 
against  one  Sylvia,  a  negro  slave,  **for  stealing 
monies  from  Alex''  Johnson.'' 

*  *  The  prisoner  being  set  to  the  bar  and  arraigned, 
did  plead  guilty,  and  for  trial  put  herself  upon  God 
and  the  country."  Her  case  was  immediately 
moved.  One  witness,  the  Alexander  Johnson  men- 
tioned, testified. 

**The  jury  without  going  from  the  Bar  say,  that 
they  find  the  prisoner  at  the  bar  Guilty  of  the  Felony 
whereof  she  stands  indicted.     .     ,     ." 

Just  one  week  later,  Sylvia,  now  a  convict,  ''was 
called  to  the  Bar,  for  judgment,  and  it  being  de- 
manded of  her  in  the  usual  manner  what  she  could 
say  for  herself  why  judgment  of  Death  should  not 
now  pass  against  her,  according  to  law,  she  did  pro- 
duce and  plead  a  pardon  of  the  People  of  the  State 
of  New  York,  under  the  Great  Seal,  bearing  test  the 


266         THE  PEISONER  AT  THE  BAR 

31st  March,  1784,  which  was  read  and  allowed,  and 
the  Prisoner  discharged.'' 

Sylvia  was  undoubtedly  a  valuable  piece  of  per- 
sonal property — valuable  enough  evidently  to  make 
it  worth  her  master's  while  to  urge  his  claims  upon 
the  Governor  for  clemency. 

White  offenders  did  not  always  fare  as  well.  But 
for  them  in  the  colonial  times  still  occasionally  re- 
mained that  quaint  old  plea  of  ** benefit  of  clergy." 
This  lingered  on  as  late  as  1784,  when  the  record 
shows  that  one  John  Cullen,  having  been  convicted 
of  forgery, 

"ON  MOTION  of  Mr.  Attorney-General  .  .  ,  was 
sent  to  the  Bar  for  judgment,  and  it  being  demanded  of  him 
in  the  usual  form  what  he  could  say  for  himself  why  judg- 
ment of  death  should  not  pass  against  him  according  to  Law, 
he  prayed  the  Benefit  of  Clergy,  which  was  granted  by  the 
Court. 

THEREUPON  IT  WAS  ORDERED  that  the  said  John 
Cullen  be  branded  in  the  brawn  of  the  left  Thumb  with  the 
letter  T  in  the  presence  of  the  court,  and  that  the  sheriff 
execute  the  order  immediately,  which  was  done  accord- 
ingly." 

Benefit  of  clergy  was  the  historic  privilege  ac- 
corded in  England  to  all  priests  of  being  tried  only  in 
the  ecclesiastical  courts  for  their  crimes.  Coke  says 
that  **it  took  its  root  from  a  constitution  of  the  Pope 
that  no  man  should  accuse  the  priests  of  Holy  Church 
before  a  secular  judge."  As  all  common-law  felo- 
nies (except  petty  larceny  and  mayhem)  were  pun- 
ishable hy  death  even  as  late  as  1826,  and  as  these 
felonies  included  homicide,  rape,  burglary,  arson, 
robbery  and  larceny,  and  all  were  clergyable,  it  must 
have  been  a  prerogative  of  considerable  value  to  any 
member  of  the  cloth  of  lively  disposition. 


THE   SENTENCE  267 

Originally  the  privilege  could  be  claimed  before 
trial,  and  ousted  the  lay  courts  of  any  jurisdiction 
whatever,  the  right  being  strictly  limited,  however, 
to  those  who  exhibited  all  the  physical  attributes 
and  garb  of  priesthood,  having  ^'hahitmn  et  tonsu- 
ram  clericalem/'  but  long  before  (1350)  it  was  pro- 
vided that  ^^all  manner  of  clerks,  as  well  secular  as 
religious,  shall  from  henceforth  freely  have  and  en- 
joy the  privileges  of  Holy  Church."  As  a  priest's 
trial  in  the  ecclesiastical  courts  was  hardly  more 
than  a  matter  of  form,  with  rarely  any  result  save 
that  of  acquittal,  he  who  could  plead  his  *' benefit'' 
was  practically  immune  so  far  as  punishment  for 
his  crimes  was  concerned.  In  course  of  time  the 
right  was  accorded  only  after  conviction  in  the 
secular  courts. 

In  1487  it  was  provided  that  every  person  con- 
victed of  a  clergyable  felony  should  be  branded  in 
the  brawn  of  his  thumb,  so  that  mere  inspection 
would  reveal  second  offenders.  The  letter  M  stood 
for  murderer  and  T  for  thief  or  forger,  as  we  have 
seen  in  Cullen's  case.  The  statute  also  provided 
that  no  person  could  plead  his  clergy  a  second  time 
unless  he  were  actually  in  orders.  Thus  as  late  as 
1487  practically  any  one  who  could  read  or  write 
might  commit  as  many  crimes,  including  murder,  as 
he  chose,  with  no  fear  of  punishment  save  of  having 
to  make  his  purgation,  and  after  that  date  could,  so 
to  speak,  have  one  murder,  arson  or  larceny  and 
escape  with  branding,  while  the  priest  in  orders  con- 
tinued free  to  violate  the  law  to  his  heart's  content. 
Perhaps  this  wholesale  extension  of  the  privilege 
was  made  in  the  interest  of  education  and  as  an  in- 
centive to  literary  accomplishment.    It  certainly  put 


268         THE  PRISONEE  AT  THE  BAR 

a  premium  on  learning  which  a  mere  *' degree" 
could  not  offer. 

From  the  beginning  of  the  eighteenth  century  on 
(the  privilege  having  been  extended  by  statute  to 
all  the  inhabitants  of  England,  male  or  female), 
any  one,  irrespective  of  his  learning,  could  plead 
his  clergy  once  to  any  crime  that  remained  clergy- 
able, if  he  could  find  one,  and  priests  in  orders 
could  do  so  indefinitely.  But  the  crimes  which  were 
clergyable  were  correspondingly  reduced  in  num- 
ber. In  1779  branding  was  practically  done  away 
with  in  England.    (19  Geo.  3,  c.  74  s.  3.) 

It  is  interesting  to  find  the  custom  still  in  vogue 
in  America  as  late  as  1784,  as  shown  by  the  case  of 
CuUen.* 

In  one  or  two  of  the  Southern  States  the  plea 
lingered  on  for  nearly  another  half  century. 

When  the  defendant  could  not  avail  himself  of 
clergy  and  no  pardon  was  at  hand  to  save  him,  the 
law  in  the  early  days  took  its  full  and  awful  course. 
Thus  we  read  in  the  first  almost  illegible  volume  of 
the  records,  the  phraseology  of  the  sentence,  save 

*  The  whipping  post  and  the  pillory  were  in  active  use  until  com- 
paratively recent  tunes.  Under  Dutch  rule  the  former  occupied  a 
conspicuous  place  in  front  of  the  Stadt  Huys  on  the  strand.  Aa 
a  matter  of  great  leniency  the  floggings  were  sometimes  conducted  in 
a  room  to  which  the  public  was  not  admitted.  But  the  disgrace  of 
the  performance  was  regarded  as  an  integral  part  of  the  punishment. 
The  offenders  were  at  the  same  time  branded  and  frequently  banished. 
A  New  York  paper,  dated  1712,  says  that  one  woman  at  the  whijyping 
post  "  created  much  amusement  by  her  resistance."  The  New  York 
Gazette  for  May  14,  1750,  states: 

"  Tuesday  last  one  David  Smith  was  convicted  in  the  Mayor's  Court 
of  Taking  or  Stealing  Goods  off  a  Shop  Window  in  this  City,  and  was 
sentenced  to  be  whipped  at  the  Cart's  Tail  round  this  Town  and  after- 
wards whipped  at  the  Pillory  which  sentence  was  accordingly  executed 
on  him."  The  same  paper  for  October  2,  1752,  describes  the  pillorying 
of  a  boy  for  picking  pockets  and  the  whipping  of  an  Irishman  for  steal- 
ing deerskins.  In  the  olden  days  many  a  common  scold  was  ducked 
into  quiescence  in  the  North  River. 


THE   SENTENCE  269 

for  its  terms,  being  practically  the  same  to  this 

day: 

Att  a  Court  holden  for  the  tryal  of  negro 
and  Indian  slaves  at  the  Citty  Hall  of 
the  Citty  of  New- York,  on  Tuesday 
the  15*^  day  of  April,  Anno  Dom. 
1712. 
Present: 

Caleb  Heathsope,  1  Esquires, 

William  Smith,       -  Justices 

Edward  Blagge 

Court  opened — 

!The  defend*  Tom  being 
brought  to  the  Barr  &  having 
nothing  to  say  for  himself 
why  judgment  of  death  should 
not  pass  ag*  him  according  to 
the  verdict  &c.  It  is  con- 
sidered by  the  Court  that  he 
be  carryed  from  hence  to  the  place  from  whence  he  came 
and  from  thence  to  the  place  of  execution  and  thence  to  be 
burned  with  a  slow  fire  that  he  may  continue  in  torment 
for  eight  or  ten  hours  and  continue  burning  in  said  fire 
untill  he  be  dead  and  consumed  to  ashes. 

At  present,  when  *^ benefit  of  clergy''  is  but  a  legal 
tradition,  and  pardons  are  obtained  with  difficulty, 
but  one  legal  barrier  can  be  raised  to  the  interposi- 
tion of  sentence  upon  a  convict — proof  of  his  in- 
sanity. If,  in  the  opinion  of  the  court,  there  is 
reasonable  ground  for  believing  him  to  be  mentally 
unbalanced,  the  question  must  be  determined  as  pro- 
vided in  the  Code.  If  he  is  found  to  be  sane,  judg- 
ment must  then  be  pronounced,  but  if  found  insane 
he  must  be  committed  to  the  State  Lunatic  Asylum 
until  he  recovers  his  sanity,  and  when  notice  is  given 
of  that  fact  he  must  be  brought  before  the  court  for 
judgment.  Of  course,  he  may  also  allege  legal 
ground  why  the  judgment  should  be  arrested  or  why 


270         THE  PEISONEE  AT  THE  BAR 

a  new  trial  should  be  granted,  but  at  this  time  a 
technical  discussion  of  these  motions  would  be  un- 
necessary. 

Defendants  are  far  less  likely  to  feign  insanity  at 
the  time  of  their  sentence  than  they  are  upon  the 
actual  trial ;  for  if  a  man  is  clever  enough  to  act  the 
part  of  a  lunatic  he  is  shrewd  enough  to  realize  that 
the  best  time  to  do  so  is  before  he  has  been  convicted 
of  the  crime  charged  against  him. 

There  is  a  reputed  case,  the  memory  of  which  still 
lingers  around  the  criminal  courts,  where  it  is  said 
that  a  defendant  who  was  charged  with  murder  in  its 
first  degree  feigned  insanity  just  before  his  case  was 
moved  for  trial.  This  was  many  years  ago,  at  a 
time  when  such  a  fact  did  not,  of  itself,  necessarily 
excite  the  same  suspicion  that  it  does  to-day.  The 
issue  of  the  defendant's  sanity  was  tried  before  a  lay 
jury,  who  promptly  found  that  he  was  incapable 
of  understanding  the  proceedings  against  him  or 
of  making  proper  preparation  for  his  defence.  He 
was  thereupon  committed  to  the  State  Asylum  for 
the  Insane,  where  he  remained  incarcerated  for 
many  years.  It  so  happened  that  there  was  but  a 
single  eye-witness  to  the  shooting,  and  the  circum- 
stances surrounding  the  affair  were  such  that  with- 
out the  testimony  of  this  witness  it  would  be  a 
practical  impossibility  to  determine  whether  the 
deceased  had  been  murdered  or  had  committed  sui- 
cide. After  twenty  years,  in  the  course  of  which  the 
defendant 's  lawyer  had  died  and  the  entire  family  of 
the  prisoner  had  either  died  or  disappeared,  an- 
other lawyer,  who  had  found  among  some  old  papers 
a  memorandum  of  the  case,  went  to  Matteawan, 
located  the  defendant,  and  discovered,  as  he  had 


THE   SENTENCE  271 

anticipated,  that  lie  was  entirely  sane.  A  writ  of 
habeas  corpus  was  thereupon  procured  and  the  de- 
fendant brought  back  to  New  York. 

In  that  time  the  entire  aspect  of  the  city  had 
changed.  Buildings  twenty-five  stories  in  height  had 
replaced  those  of  six ;  the  city  had  reached  far  up  and 
entirely  covered  the  island;  electric  surface  cars 
had  taken  the  place  of  ramshackle,  bobtail  horse  cars. 
The  defendant,  prematurely  aged  and  with  clothes 
long  out  of  date,  impressed  those  in  the  court-room 
as  a  sort  of  Rip  Van  Winkle,  awakened  after  a  long 
sleep.  There  was  absolutely  no  question  as  to  the 
man's  sanity,  and  he  was  discharged  upon  the  writ 
of  habeas  corpus  and  remanded  to  the  Tombs  to 
await  his  trial.  The  following  morning  he  was 
brought  into  court,  and  the  district  attorney  moved 
that  the  indictment  against  him  be  dismissed  on  the 
ground  that  there  was  no  longer  any  evidence  upon 
which  the  people  could  proceed  to  prosecution. 
Then  for  the  first  time  the  defendant  discovered 
that  the  only  witness  against  him  had  died  ten  days 
after  he  had  been  committed  to  the  asylum.  Al- 
though the  writer  does  not  vouch  for  the  authen- 
ticity of  this  story,  the  incident  may  well  have 
happened. 

In  addition  to  the  legal  ground  of  insanity  why 
judgment  should  not  be  imposed,  a  convict  or  his 
counsel  may  properly,  on  his  arraignment,  state 
to  the  court  any  general  reasons  for  a  mitigation  of 
sentence  or  for  its  absolute  suspension  when  such  is 
within  the  discretion  of  the  court,  and  few  sentences 
are  imposed  without  a  more  or  less  lengthy  appeal 
for  clemency  from  the  defendant's  lawyer,  who 
usually  does  not  confine  himself  merely  to  the  con- 


272         THE  PEISONER  AT  THE  BAR 

trition  of  the  defendant,  his  past  respectability  and 
his  pledges  to  lead  a  new  and  better  life,  but  is  prone 
to  discourse  volubly  upon  the  reputable  connections 
of  the  defendant,  the  hardship  which  a  sentence  will 
impose  upon  his  family,  and  the  fact  that  the  com- 
plainant or  those  who  have  been  interested  in  the 
prosecution  now  have  a  profound  sympathy  for  the 
prisoner.  The  gist  of  many  of  these  appeals  is  to 
the  effect  that  because  the  defendant,  by  reason  of 
his  education  and  opportunities,  ought  to  have  known 
better  than  to  commit  crime,  he  should  now,  since 
he  has  discovered  his  mistake,  be  excused  from 
paying  the  penalty.  The  judge  invariably  listens 
with  courtesy  to  these  orations,  which  are  not  often 
made  with  any  idea  of  actually  influencing  the 
court's  decision.  They  are  grateful  to  the  defendant 
and  his  family,  and  impress  the  latter  with  the  fact 
that  the  lawyer  is  doing  everything  in  his  power  to 
get  his  client  off. 

It  is  now  the  judge's  soul  is  tried.  How  far  may 
he  temper  justice  with  mercy!  How  far  are  the 
interests  of  the  public  and  the  prisoner  irreconcila- 
ble? Many  youthful  offenders,  who  have  not  hith- 
erto been  convicted,  escape  with  a  suspended  sen- 
tence or  a  commitment  to  a  reformatory — even 
when  found  guilty  of  crimes  as  serious  as  man- 
slaughter or  robbery.  Little  mercy  is  shown  to 
old  offenders.  In  fact,  the  law  now  provides  that 
they  may  be  tried  under  an  indictment  charging 
them  with  having  committed  a  ** second  offence," 
under  which,  if  found  guilty,  they  must  be  sen- 
tenced to  the  maximum  penalty  set  for  a  first  offence 
of  the  same  crime. 

It  should  be  noticed  that  originally  only  one  sen- 


THE   SENTENCE 


273 


tence,  and  that  a  definite  one,  could  be  passed  by  the 
judge  upon  a  prisoner  for  any  given  offence.  At 
first  there  were  no  provisions  of  law  granting  to  con- 
victs as  a  matter  of  right  any  reduction  or  conunuta- 
tion  of  sentence  because  of  good  behavior.  Then  laws 
were  passed  which  provided  for  the  definite  commu- 
tation of  the  sentences  of  all  convicts  confined  in 
State 's  prison.  The  question  as  to  whether  or  not  the 
convict  had  earned  his  commutation  by  good  behavior 
was  left  to  a  board  composed  of  the  State  superin- 
tendent of  prisons  and  others.  A  carefully  prepared 
scale  or  table  showed  exactly  how  much  commutation 
it  was  possible  for  any  prisoner  to  earn.* 

In  1889  there  was  introduced  into  New  York  State 
for  the  first  time  what  is  commonly  known  as  the 
*  *  indeterminate  sentence, ' '  that  is  to  say,  a  sentence 
consisting  of  a  minimum  and  a  maximum  term  of 
imprisonment  during  which  the  prisoner  may  be 
discharged  at  the  option  of  a  board  consisting  of 
various  persons,  but  distinct  from  that  which 
passes  upon  the  question  of  whether  or  not  he 
has  earned  his  ** commutation."  The  introduction 
of  this  form  of  sentence  is  in  conformity  with  the 
most  recent  and  most  enlightened  view  of  the 
proper  attitude  of  the  State  towards  its  criminals. 

*  The  periods  of  commutation  are  shown  by  the  following  table: 


Sentence 

Commutation 

Sentence 

Commutation 

Years 

Years 

Months 

Years 

Years 

Months 

1 

1 

1 
8 

2 

4 
8 

6 

8 

I 

11   

3 

4 
4 
6 

? 

9 

11 
4 

2 

12         .    .    . 

3 

13   

9 

4 

14 

2 

5 

15 

7 

6 

20 

8 

7 

25 

9 

8 

30 

10 

9 

35 

11 

10 

274  THE  PEISONER  AT  THE  BAR 

Whenever  the  indeterminate  sentence  has  been  in- 
troduced into  any  State  it  has  been  invariably  at- 
tacked as  being  unconstitutional,  but  the  courts  have 
uniformly  upheld  it.  The  principal  difference  to  be 
noted  between  "  commutation  "  and  "  indeterminate- 
ness  "  of  sentence  is  that  the  latter  is  vastly  broader 
in  effect,  since  only  the  prisoner's  good  behavior 
while  actually  undergoing  his  sentence  in  State's 
prison  may  be  considered  by  the  board  which  passes 
upon  his  commutation,  while,  in  the  case  of  the  inde- 
terminate sentence,  the  parole  board  may  consider 
all  the  facts  surrounding  the  commission  of  the 
crime,  the  convict's  past  life,  and  whatever  other 
facts  they  see  fit,  as  well  as  his  good  behavior  during 
his  period  of  confinement.* 

After  conviction  the  natural  optimism  of  the  hu- 
man race  reasserts  itself  and  the  defendant  begins  to 
believe  that  the  worst  is,  after  all,  over,  and  to  rely 
upon  the  assurances  of  his  counsel  or  his  political 
friends  that  the  judge  is  going  to  be  easy  on  him  and 
give  him  a  light  sentence.  Terrible  is  the  disappoint- 
ment of  such  a  one  who  finds  that  he  is  going  to  be 
sentenced  to  State's  prison  when  he  expected  the 
penitentiary  or  to  the  penitentiary  when  he  expected 
to  be  set  free  entirely  under  a  suspended  sentence. 

The  judge  usually  prefaces  the  sentence  with  a 
few  remarks  of  an  admonitory  character,  comment- 
ing upon  the  severity  of  the  crime  which  the  defend- 
ant has  committed,  and  upon  the  fact  that  it  is  within 
his  power  to  sentence  the  latter  to  a  long  term  of 
imprisonment.  He  generally  adds  that,  under  all  the 
circumstances  and  considering  the  fact  that  the  de- 

*  Cf .  "  Some  Aspects  of  the  Indeterminate  Sentence,"  by  C.  D.  Warner, 
8  Yale  Law  Journal  219.  See  also  9  Yale  Law  Journal  17,  as  well  as 
"Das  Moderne  Amerikanische  Besserungssystem,"  Dr.  Paul  Herr 
(Berlin,  1907). 


THE  SENTENCE  275 

fendant  has  never  been  convicted  before  and  has 
hitherto  led  a  reputable  life,  he  will  be  merciful  and 
give  him  only  so  and  so  many  years  in  State's  prison. 

Of  course,  this  occurs  only  in  such  cases  as  deserve 
leniency.  But  where  the  defendant  is  a  hardened 
criminal,  or  an  ex-convict,  or  when  his  crime  is  one 
of  atrocity,  he  is  apt  to  learn,  in  no  unmeasured 
terms,  what  the  judge  and  the  community  think  of 
him.  The  writer  has  heard  a  prisoner  censured  in 
such  language  that  he  blushed  for  the  human  race  of 
which  the  convict  could  be  the  offspring.  Most  de- 
fendants receive  their  sentence  with  imperturbabil- 
ity, for  they  are  able  with  approximate  accuracy  to 
figure  out  what  punishment  they  will  probably  re- 
ceive. The  experiences  of  their  acquaintances  in  the 
Tombs  are  of  great  assistance  in  this  matter,  yet 
more  than  one  convict  falls  senseless  on  the  floor 
when  sentence  is  pronounced  upon  him,  and  hun- 
dreds lose  their  nerve  and  stagger  away  bewilderedly 
at  the  thought  of  the  interminable  years  before  them. 

Yet  a  layman  happening  to  be  present  on  a  Friday 
in  the  Court  of  General  Sessions  would  be  surprised 
at  the  apparent  lightness  of  most  of  the  sentences. 
The  judges  of  our  criminal  courts  are  merciful  men 
and  rightly  believe  that  a  year  or  two  in  State's 
prison  has  a  better  effect  upon  the  defendant  than  a 
longer  term.  A  short-term  man  emerges,  at  least 
it  is  so  to  be  hoped,  with  some  aspirations  for  the 
future  and  with  health  as  yet  not  undermined.  To 
most  judges  the  infliction  of  sentence  upon  a  fellow 
human  being  ever  remains  a  bitter  experience.  In 
the  old  days,  however,  there  were  some  judges  who, 
not  unlike  Jeffries,  took  a  certain  grim  satisfaction 
in  the  performance  of  this  duty.    There  was,  many 


276         THE  PRISONER  AT  THE  BAR 

years  ago,  one  of  them  who  seemed  to  take  a  particu- 
lar delight  in  so  far  as  possible  prolonging  the  agony 
of  the  defendant's  uncertainty.  When  a  prisoner 
had  been  arraigned  for  sentence  the  judge  would 
wait  for  absolute  silence,  and  would  then  with  the 
greatest  deliberation  address  a  long  harangue  to 
the  unfortunate  man,  characterize  his  crime  in  the 
severest  manner,  excoriate  him  for  having  commit- 
ted it,  name  the  maximum  penalty  which  the  law 
allowed,  intimate  that  he  was  going  to  impose  it, 
and  then,  after  a  long  hiatus,  slowly  take  down  his 
sentence  book,  ink  his  pen  with  annoying  delibera- 
tion, cough  two  or  three  times,  look  around  the  court- 
room and  begin  carefully  inscribing  each  word  upon 
the  record  before  him,  *^I — shall — therefore — sen- 
tence— ^you — to — [cough,  another  glance  around  the 
room] — ^five  years  in  State's  prison." 

Many  pathetic  and  also  amusing  incidents  occur 
upon  these  occasions.  There  is  a  true  story  of  an 
incident  which,  however,  did  not  occur  in  the  Gen- 
eral Sessions  of  New  York  County,  where  a  prisoner 
who  had  been  convicted  was  arraigned  before  the 
judge  for  sentence.  This  judge  was  an  aged  man 
with  a  great  reputation  for  his  bitter  wit  and  sar- 
casm. The  convict,  who  had  been  convicted  of  being 
a  common  gambler  and  who  was  described  by  the 
court  officers  as  a  '*fly  guy,''  appeared  in  a  loudly 
checked  yellow  and  black  suit  with  a  red  necktie  and 
a  large  paste  diamond  horseshoe  pin.  The  judge 
from  under  his  beetling  eyebrows  looked  fiercely 
down  upon  him  from  the  bench  and  remarked  with 
intense  scorn: 

**I  sentence  you  to  pay  a  fine  of  fifty  dollars " 

*^ That's  all  right,  judge,"  interrupted  the  **fly 


THE    SENTENCE  277 

guy'*  nonchalantly,  thrusting  his  hand  into  his  trou- 
sers.   *  *  Got  it  in  my  pants  pocket. ' ' 

** ^And  to  three  years  and  six  months  in  State '& 

prison,"  continued  his  Honor,  with  a  slight  twinklo 
in  his  eye.  ''Have  you  got  that  in  your  pants 
pocket?'' 

Recorder  Smyth  is  said  to  have  had  a  habit  of  en- 
tering the  sentences  which  he  proposed  to  inflict  in  a 
book  which  he  kept  for  that  purpose.  He  also  gener- 
ally made  use  of  a  regular  set  form  of  expression 
when  imposing  them.  A  miserable  little  defendant 
who  was  gifted  with  a  greater  fund  of  originality 
than  of  common-sense,  had  conceived  the  extraordi- 
nary idea  of  stealing  a  ship 's  anchor  belonging  to  a 
company  which  owned  a  dock  in  the  North  River. 
For  this  purpose  he  procured  a  dray,  drawn  by  six 
or  eight  horses,  and  a  derrick,  by  means  of  which  he 
hoisted  the  anchor  in  question  upon  the  dray  in  the 
dead  of  night  and,  as  might  have  been  expected, 
succeeded  in  getting  only  about  half  way  down  the 
dock  with  it  before  he  was  apprehended  by  a  watch- 
man. 

Naturally  he  had  no  adequate  explanation  to  offer 
and  promptly  pleaded  guilty.  He  was  arraigned 
at  the  bar  in  company  with  several  other  defendants. 
Recorder  Smyth,  his  mind  still  dwelling  upon  the 
words  with  which  he  had  sentenced  the  latter,  thus 
addressed  the  trembling  miscreant : 

**You  have  pleaded  guilty  to  the  crime  of  stealing 
a  ship's  anchor!" — then  raising  his  voice  he  con- 
tinued, with  perfect  solemnity :  *  *  The  crime  of  steal- 
ing a  ship's  anchor  is  becoming  entirely  too  preva- 
lent! I  sentence  you  to  three  years  and  a  half  in 
State's  prison." 


278         THE  PRISONER  AT  THE  BAR 

In  contrast  with  those  cheerful  days  on  Manhat- 
tan, not  mnch  over  a  century  and  a  half  ago,  when 
negroes  were  burnt  to  death  in  chains,  and  thieves 
branded  in  open  court  and  then,  tied  bareback  to  the 
tail  of  a  cart,  whipped  at  every  street  corner  from 
the  City  Hall  to  the  Battery  and  return,  the  follow- 
ing incident  may  serve  as  a  pleasant  reminder  of  our 
progress  in  civilization : 

A  young  Irishman  of  excellent  address,  and  em- 
ployed in  a  responsible  position  in  an  express 
company,  appropriated,  at  the  instigation  of  evil 
companions,  some  of  the  funds  intrusted  to  his 
keeping.  The  larceny  was  detected,  he  was  arrested 
and  admitted  his  guilt.  Meantime,  some  one  had 
written  to  his  parents  in  Ireland  who  lived  in  a 
remote  parish  in  the  humblest  circumstances.  The 
two  old  people  sold  their  little  cottage,  as  well  aa 
their  pig  and  cow,  and  took  steerage  passage  from 
Queenstown  to  New  York.  They  arrived  upon  th(} 
day  set  for  their  son's  sentence,  entering  the  court- 
room as  he  was  arraigned  at  the  bar.  A  tearful 
recognition  followed,  and  the  prisoner,  overwhelmed 
at  this  touching  proof  of  his  parents'  love,  begged 
the  judge  to  listen  to  their  supplication  for  mercy. 
Their  simple  story  deeply  affected  the  court,  who 
discharged  the  defendant  in  their  keeping,  under  his 
solemn  promise  to  return  with  them  to  Ireland,  there 
to  honor  and  labor  for  them  so  long  as  they  should 
live. 


CHAPTEE   XV 
WOMEN  IN  THE  COURTS 

AS   WITNESSES 

Women  appear  in  the  criminal  courts  constantly 
as  witnesses,  although  less  frequently  as  complain- 
ants and  defendants.  As  complainants  are  always 
witnesses,  and  as  defendants  may,  and  in  point  of 
fact  generally  do  become  so,  whatever  generaliza- 
tions are  possible  regarding  women  in  courts  of  law 
can  most  easily  be  drawn  from  their  characteristics 
as  givers  of  testimony.  Roughly  speaking,  women 
exhibit  about  the  same  idiosyncrasies  and  limitations 
in  the  witness-chair  as  the  opposite  sex,  and  at  first 
thought  one  would  be  apt  to  say  that  it  would  be 
fruitless  and  absurd  to  attempt  to  predicate  any 
general  principles  in  regard  to  their  testimony, 
but  a  careful  study  of  female  witnesses  as  a  whole 
will  result  in  the  inevitable  conclusion  that  their 
evidence  has  virtues  and  limitations  peculiar  to 
itself. 

The  ancient  theory  that  woman  was  man's  infe- 
rior showed  itself  in  the  tendency  to  reject,  or  at 
least  to  regard  with  suspicion,  her  evidence  in  legal 
matters. 

**The  following  law,"  says  W.  M.  Best,  **is  at- 
tributed to  Moses  by  Josephus:  'Let  the  testimony 
of  women  not  be  received  on  account  of  the  levity 

279 


280         THE  PEISONER  AT  THE  BAR 

and  audacity  of  their  sex';  a  law  which  looks  apoc- 
ryphal, but  which,  even  if  genuine,  could  not  have 
been  of  universal  application.  .  .  .  The  law  of 
ancient  Rome,  though  admitting  their  testimony  in 
general,  refused  it  in  certain  cases.  The  civil  and 
canon  laws  of  mediaeval  Europe  seem  to  have  car- 
ried the  exclusion  much  further.  Mascardus  says: 
*Feminis  plerumque  omnino  non  creditur,  et  id  dum- 
taxat,  quod  sunt  femince,  quce  ut  plurimum  solent 
esse  fraudulentcdj  fallaces,  et  dolosce'  [Generally 
speaking,  no  credence  at  all  is  given  to  women,  and 
for  this  reason,  because  they  are  women,  who  are 
usually  deceitful,  untruthful,  and  treacherous  in  the 
very  highest  degree].  And  Lancelottus,  in  his  *In- 
stitutiones  Juris  Canonici, '  lays  it  down  in  the  most 
distinct  terms,  that  women  cannot  in  general  be 
witnesses,  citing  the  language  of  Virgil:  ^Varium 
et  mutahile  semper  femina/    .     .    . 

**Bruneau,  although  a  contemporary  of  Madame 
de  Sevigne,  did  not  scruple  to  write,  in  1686,  that  the 
deposition  of  three  women  was  only  equal  to  that 
of  two  men.  At  Berne,  so  late  as  1821,  in  the  Can- 
ton of  Vaud,  so  late  as  1824,  the  testimony  of  two 
women  was  required  to  counterbalance  that  of  one 
man.  ...  A  virgin  was  entitled  to  greater 
credit  than  a  widow.  ...  In  the  ^Canonical 
Institutions  of  Devotus, '  published  at  Paris  in  1852, 
it  is  distinctly  stated  that,  except  in  a  few  peculiar 
instances,  women  are  not  competent  witnesses  in 
criminal  cases.  In  Scotland  also,  until  the  beginning 
of  the  eighteenth  century,  sex  was  a  cause  of  exclu- 
sion from  the  witness-box  in  the  great  majority  of 
instances.  *' 

Cockbum  in  his  Memoirs  tells  of  an  incident  dur- 


WOMEN   IN   THE    COUETS  281 

ing  the  trial  of  Glengarry,  in  Scotland,  for  murder 
in  a  duel,  which  is,  perhaps,  explicable  by  this  ex- 
traordinary attitude: — A  lady  of  great  beauty  was 
called  as  a  witness  and  came  into  court  heavily 
veiled.  Before  administering  the  oath,  Lord  Esk- 
grove,  the  judge  (to  whom  this  function  belongs  in 
Scotland),  gave  her  this  exposition  of  her  duty: 

*^  Young  woman,  you  will  now  consider  yourself 
as  in  the  presence  of  Almighty  God  and  of  this  High 
Court.  Lift  up  your  veil,  throw  off  all  your  mod- 
esty, and  look  me  in  the  face,'' 

Whatever  difference  does  exist  in  character  be- 
tween the  testimony  of  men  and  women  has  its  root 
in  the  generally  recognized  diversity  in  the  mental 
processes  of  the  two  sexes.  Men,  it  is  commonly 
declared,  rely  upon  their  powers  of  reason ;  women 
upon  their  intuition.  Not  that  the  former  is  fre- 
quently any  more  accurate  than  the  latter.  But 
our  courts  of  law  (at  least  those  in  English-speak- 
ing countries)  are  devised  and  organized,  per- 
haps unfortunately,  on  the  principle  that  testimony 
not  apparently  deduced  by  the  syllogistic  method 
from  the  observation  of  relevant  fact  is  valueless, 
and  hence  woman  at  the  very  outset  is  placed  at  a 
disadvantage  and  her  usefulness  as  a  probative 
force  sadly  crippled. 

The  good  old  lady  who  takes  the  witness-chair  and 
swears  that  she  knows  the  prisoner  took  her  purse 
has  perhaps  quite  as  good  a  basis  for  her  opinion 
and  her  testimony  (even  though  she  cannot  give  a 
single  reason  for  her  belief  and  becomes  hopelessly 
confused  on  cross-examination)  as  the  man  who 
reaches  the  same  conclusion  ostensibly  by  virtue  of 
having  seen  the  defendant  near  by,  observed  his 


282         THE  PEISONER  AT  THE  BAR 

hand  reacMng  for  the  purse,  and  then  perceived  him 
take  to  his  heels.  She  has  never  been  taught  to  rea- 
son and  has  really  never  found  it  necessary,  having 
wandered  through  life  by  inference  or,  more  frankly, 
by  guesswork,  until  she  is  no  longer  able  to  point 
out  the  simplest  stages  of  her  most  ordinary  mental 
processes. 

As  the  reader  is  already  aware,  the  value  of  all 
honestly  given  testimony  depends  first  upon  the  wit- 
ness 's  original  capacity  to  observe  the  facts ;  second 
upon  his  ability  to  remember  what  he  has  seen  and 
not  to  confuse  knowledge  with  imagination,  belief  or 
custom,  and  lastly,  upon  his  power  to  express  what 
he  has,  in  fact,  seen  and  remembers. 

Women  do  not  differ  from  men  in  their  original 
capacity  to  observe,  which  is  a  quality  developed 
by  the  training  and  environment  of  the  individual. 
It  is  in  the  second  class  of  the  witness's  limitations 
that  women  as  a  whole  are  more  likely  to  trip  than 
men,  for  they  are  prone  to  swear  to  circumstances 
as  facts,  of  their  own  knowledge,  simply  because 
they  confuse  what  they  have  really  observed  with 
what  they  believe  did  occur  or  should  have  occurred, 
or  with  what  they  are  convinced  did  happen  simply 
because  it  was  accustomed  to  happen  in  the  past. 

Perhaps  the  best  illustration  of  the  female  habit 
of  swearing  that  facts  occurred  because  they  usually 
occurred,  was  exhibited  in  the  Twitchell  murder 
trial  in  Philadelphia,  cited  in  Wellman's  **Art  of 
Cross-Examination."  The  defendant  had  killed  his 
wife  with  a  blackjack,  and  having  dragged  her  body 
into  the  back  yard,  carefully  unbolted  the  gate  lead- 
ing to  the  adjacent  alley  and,  retiring  to  the  house, 
went  to  bed.    His  purpose  was  to  create  the  impres- 


WOMEN   IN    THE    COURTS  283 

sion  that  she  had  been  murdered  by  some  one  from 
outside  the  premises.  To  carry  out  the  suggestion, 
he  bent  a  poker  and  left  it  lying  near  the  body 
smeared  with  blood.  In  the  morning  the  servant 
girl  found  her  mistress  and  ran  shrieking  into  the 
street. 

At  the  trial  she  swore  positively  that  she  was  first 
pbliged  to  unbolt  the  door  in  order  to  get  out.  Noth- 
ing could  shake  her  testimony,  and  she  thus  uncon- 
sciously negatived  the  entire  value  of  the  defend- 
ant's adroit  precautions.  He  was  justly  convicted, 
although  upon  absolutely  erroneous  testimony. 

The  old  English  lawyers  occasionally  rejected  the 
evidence  of  women  on  the  ground  that  they  are 
**frail.''  But  the  exclusion  of  women  as  witnesses 
in  the  old  days  was  not  for  psychological  reasons, 
nor  did  it  originate  from  a  critical  study  of  the 
probative  value  of  their  testimony. 

Though  the  conclusions  to  which  women  fre- 
quently jump  may  usually  be  shown  by  careful  in- 
terrogation to  be  founded  upon  observation  of  act- 
ual fact,  their  habit  of  stating  inferences  often  leads 
them  to  claim  knowledge  of  the  impossible — **  wiser 
in  [their]  own  conceit  than  seven  men  that  can  ren- 
der a  reason." 

In  a  very  recent  case  where  a  clever  thief  had  been 
convicted  of  looting  various  apartments  in  New 
York  City  of  over  eighty  thousand  dollars '  worth  of 
jewelry,  the  female  owners  were  summoned  to 
identify  their  property.  The  writer  believes  that  in 
every  instance  these  ladies  were  absolutely  ingenu- 
ous and  intended  to  tell  the  absolute  truth.  Each 
and  every  one  positively  identified  various  of  the 
loose  stones  found  in  the  possession  of  the  prisoner 


284         THE  PEISONER  AT  THE  BAR 

as  her  own.  This  was  the  case  even  when  the  dia- 
monds,  emeralds  and  pearls  had  no  distinguishing 
marks  at  all.  It  was  a  human  impossibility  actually 
to  identify  any  such  objects,  and  yet  these  eminently 
respectable  and  intelligent  gentlewomen  swore  posi- 
tively that  they  could  recognize  their  jewels.  They 
drew  the  inference  merely  that  as  the  prisoner  had 
stolen  similar  jewels  from  them  these  must  be  the 
actual  ones  which  they  had  lost,  an  inference  very 
likely  correct,  but  valueless  in  a  tribunal  of  jus- 
tice. 

Where  their  inferences  are  questioned,  women,  as 
a  rule,  are  much  more  ready  to  **  swear  their  testi- 
mony through ' '  than  men.  They  are  so  accustomed 
to  act  upon  inference  that,  finding  themselves  un- 
able to  substantiate  their  assertion  by  any  sufficient 
reason,  they  become  irritated,  ^'show  fight,"  and 
seek  refuge  in  prevarication.  Had  they  not,  during 
their  entire  lives,  been  accustomed  to  mental  short- 
cuts, they  would  be  spared  the  humiliation  of  seeing 
their  evidence  '  ^  stricken  from  the  record. ' ' 

One  of  the  ladies  referred  to  testified  as  follows : 

**Can  you  identify  that  diamond?'' 

**I  am  quite  sure  that  it  is  mine,'^ 

'*How  do  you  know!'' 

'^It  looks  exactly  like  it." 

^^But  may  it  not  be  a  similar  one  and  not  your 
own?" 

^^No;  it  is  mine," 

' '  But  how  1    It  has  no  mark&. ' ' 
I  donH  care.    I  know  it  is  mine.    I  SWEAR 
IT  IS!" 

The  good  lady  supposed  that,  unless  she  swore  to 
the  fact,  she  might  lose  her  jewel,  which  was,  of 


WOMEN   IN   THE    COURTS  285 

course,  not  the  case  at  all,  as  the  sworn  testimony 
founded  upon  nothing  but  inference  left  her  in  no 
better  position  than  she  was  in  before. 

The  writer  regrets  to  say  that  observation  would 
lead  him  to  believe  that  women  as  a  rule  have  some- 
what less  regard  for  the  spirit  of  their  oaths  than 
men,  and  that  they  are  more  ready,  if  it  be  neces- 
sary, to  commit  perjury.  This  may  arise  from  the 
fact  that  women  are  fully  aware  that  their  sex  pro- 
tects them  from  the  same  severity  of  cross-examina- 
tion to  which  men  would  be  subjected  under  similar 
circumstances.  It  is  to-day  fatal  to  a  lawyer's  case 
if  he  be  not  invariably  gentle  and  courteous  with  a 
female  witness,  and  this  is  true  even  if  she  be  a 
veritable  Sapphira. 

In  spite  of  these  limitations,  which,  of  course, 
affect  the  testimony  of  almost  every  person,  irre- 
spective of  sex,  women,  with  the  possible  excep- 
tion of  children,  make  the  most  remarkable  wit- 
nesses to  be  found  in  the  courts.  They  are  almost 
invariably  quick  and  positive  in  their  answers, 
keenly  alive  to  the  dramatic,  possibilities  of  the 
situation,  and  with  an  unerring  instinct  for  a  trap 
or  compromising  admission. 

A  woman  will  inevitably  couple  with  a  categori- 
cal answer  to  a  question,  if  in  truth  she  can  be  in- 
duced to  give  one  at  all,  a  statement  of  damaging 
character  to  her  opponent.    For  example : 

''Do  you  know  the  defendant?" 

'  *  Yes, — to  my  cost ! ' ' 

Or: 

''How  old  are  youT* 

^'Twenty-three, — old  enough  to  have  known  bet- 
ter than  to  trust  him." 


286         THE  PRISONER  AT  THE  BAR 

Forced  to  make  an  admission  which  would  seem 
to  hurt  her  position,  the  explanation,  instead  of  be- 
ing left  for  the  re-direct  examination  of  her  own 
counsel,  is  instantly  added  to  her  answer  then  and 
there. 

**Do  you  admit  that  you  were  on  Forty-second 
Street  at  midnight  T' 

**Yes.  But  it  was  in  response  to  a  message  sent 
by  the  defendant  through  his  cousin/' 

What  is  commonly  known  as  *  *  silent  cross-exami- 
nation" is  generally  the  most  effective.  The  jury 
realize  the  difficulties  of  the  situation  for  the  lawyer, 
and  are  not  unlikely  to  sympathize  with  him,  unless 
he  makes  bold  to  attack  the  witness,  when  they 
quickly  change  their  attitude. 

One  question,  and  that  as  to  the  witness's  means 
of  livelihood,  is  often  sufficient. 

**How  do  you  support  yourself !" 

**I  am  a  lady  of  leisure  !'*  replies  the  witness  (ar- 
rayed in  flamboyant  colors)  snappishly. 

**That  will  do,  thank  you,"  remarks  the  lawyer 
with  a  smile.    **  You  may  step  down. " 

The  writer  remembers  being  nicely  hoisted  by  his 
own  petard  on  a  similar  occasion : 

**What  do  you  do  for  a  living?"  he  asked. 

The  witness,  a  rather  deceptively  arrayed  woman, 
turned  upon  him  with  a  glance  of  contempt : 

'*I  am  a  respectable  married  woman,  with  seven 
children,"  she  retorted.  '^I  do  nothing  for  a  living 
except  cook,  wash,  scrub,  make  beds,  clean  windows, 
mend  my  children's  clothes,  mind  the  baby,  teach 
the  four  oldest  their  lessons,  take  care  of  my  hus- 
band, and  try  to  get  enough  sleep  to  be  up  by  five 
in  the  morning.    I  guess  if  some  lawyers  worked  as 


WOMEN   IN   THE    COUETS  287 

hard  as  I  do  they  would  have  sense  enough  not  to 
ask  impertinent  questions." 

An  amusing  incident  is  recorded  of  how  a  femi- 
nine witness  turned  the  laugh  upon  Mr.  Francis  L. 
Wellman,  the  noted  cross-examiner.  In  his  book 
he  takes  the  opportunity  to  advise  his  lawyer 
readers  to  **  avoid  the  mistake,  so  common  among 
the  inexperienced,  of  making  much  of  trifling  dis- 
crepancies. It  has  been  aptly  said,"  he  continues, 
**that  *  juries  have  no  respect  for  small  triumphs 
over  a  witness's  self-possession  or  memory !'  Allow 
the  loquacious  witness  to  talk  on ;  he  will  be  sure  to 
involve  himself  in  difficulties  from  which  he  can 
never  extricate  himself.  Some  witnesses  prove  alto- 
gether  too  much;  encourage  them  and  lead  them  hy 
degrees  into  exaggerations  that  will  conflict  with  the 
common-sense  of  the  jury. " 

Mr.  Wellman  is  famous  for  following  this  precept 
himself  and,  with  one  eye  significantly  cast  upon  the 
jury,  is  likely  to  lead  his  witness  a  merry  dance  until 
the  latter  is  finally  ** bogged"  in  a  quagmire  of  ab- 
surdities. Not  long  ago,  shortly  after  the  publica- 
tion of  his  book,  the  lawyer  had  occasion  to  cross- 
examine  a  modest-looking  young  woman  as  to  the 
speed  of  an  electric  car.  The  witness  seemed  con- 
scious that  she  was  about  to  undergo  a  severe  ordeal, 
and  Mr.  Wellman,  feeling  himself  complete  master 
of  the  situation,  began  in  his  most  winsome  and 
deprecating  manner: 

**And  how  fast.  Miss ,  would  you  say  the  car 

was  going?" 

**I  really  could  not  tell  exactly,  Mr.  Wellman." 

**  Would  you  say  that  it  was  going  at  ten  miles 
an  hour?" 


288         THE  PEISONER  AT  THE  BAR 

^ ' Oh,  fully  that! ^' 

** Twenty  miles  an  hour?" 

*^Yes,  I  should  say  it  was  going  twenty  miles  an 
hour." 

^^Will  you  say  it  was  going  thirty  miles  an 
hour?"  inquired  Wellman  with  a  glance   at  the 

jury. 

**Why,  yes,  I  will  say  that  it  was." 

**  Will  you  say  it  was  going  forty?" 

'^Yes." 

^^Fifty?" 

*^Yes,  I  will  say  so." 

*^  Seventy?" 

''Yes." 

''Eighty?" 

"Yes,"  responded  the  young  lady  with  a  counte- 
nance absolutely  devoid  of  expression. 

"A  hundred?"  inquired  the  lawyer  with  a  thrill 
of  eager  triumph  in  his  voice. 

There  was  a  significant  hush  in  the  court-room. 
Then  the  witness,  with  a  patient  smile  and  a  slight 
lifting  of  her  pretty  eyebrows,  remarked  quietly : 

"Mr.  Wellman,  donH  you  think  we  have  carried 
our  little  joke  far  enough?" 

There  is  no  witness  in  the  world  more  difficult 
to  cope  with  than  a  shrewd  old  woman  who  apes 
stupidity,  only  to  reiterate  the  gist  of  her  testi- 
mony in  such  incisive  fashion  as  to  leave  it  indelibly 
imprinted  on  the  minds  of  the  jury.  The  lawyer  is 
bound  by  every  law  of  decency,  policy  and  manners 
to  treat  the  aged  dame  with  the  utmost  considera- 
tion. He  must  allow  her  to  ramble  on  discursively 
in  defiance  of  every  rule  of  law  and  evidence  in 
answer  to  the  simplest  question;  must  receive  im- 


WOMEN   IN   THE    COURTS  289 

perturbably  the  opinions  and  speculations  apon 
every  subject  of  both  herself  and  (through  her)  of 
her  neighbors ;  only  to  find  when  he  thinks  she  must 
be  exhausted  by  her  own  volubility,  that  she  is 
ready,  at  the  slightest  opportunity,  to  break  away 
again  into  a  tangle  of  guesswork  and  hearsay, 
interwoven  with  conclusions  and  ejaculation.  Woe 
be  unto  him  if  he  has  not  sense  enough  to  waive  her 
off  the  stand!  He  might  as  well  try  to  harness  a 
Valkyrie  as  to  restrain  a  pugnacious  old  Irishwoman 
who  is  intent  on  getting  the  whole  business  before 
the  jury  in  her  own  way. 

In  the  recent  case  of  Gustav  Dinser,  convicted  of 
murder,  a  vigorous  old  lady  took  the  stand  and  testi- 
fied forcibly  against  the  accused.  She  was  as  ^  *  smart 
as  paint,"  as  the  saying  goes,  and  resolutely  refused 
to  answer  any  questions  put  to  her  by  counsel  for 
the  defence.  Instead,  she  would  raise  her  voice  and 
make  a  savage  onslaught  upon  the  prisoner,  rehears- 
ing his  brutal  treatment  of  the  deceased  on  previous 
occasions,  and  getting  in  the  most  damaging  testi- 
mony„ 

**Do  you  say,  Mrs.  ,'*  the  lawyer  would  in- 
quire deferentially,  '*that  you  heard  the  sound  of 
three  blows  ? ' ' 

^*0h,  thim  blows !''  the  old  lady  would  cry — **thim 
turrible  blows !  I  could  hear  the  villain  as  he  laid 
thim  on!  I  could  hear  the  poor,  pitiful  groans  av 
her,  and  she  so  sufferinM  'Twas  awful!  Howly 
Saints,  'twould  make  yer  blood  run  cowld!*' 

*'Stop!  stop!''  exclaimed  the  lawyer. 

**Ah,  stop  is  it?  Ye  can't  stop  me  till  Oi've  had 
me  say  to  tell  the  whole  truth.  I  says  to  me  daughter 
Ellen,  says  I:    *Th'  horrid  baste  is  afther  murther- 


290         THE  PRISONER  AT  THE  BAR 

in'  the  poor  thing/  says  I;  *run  ont  an'  git  an 
officer!'  '' 

*'I  object  to  all  this!''  shouts  the  lawyer. 

**Ah,  ye  objec',  do  ye?"  retorts  the  old  lady. 
**Shiire  an'  ye'd  have  been  after  objectin'  if  ye'd 
heard  thim  turrible  blows  that  kilt  her — the  poor, 
snfferin',  swate  crayter!  I  hope  he  gits  all  that's 
comin'  to  him — ^bad  cess  to  him  for  a  blood-thirsty 
divil!" 

The  lawyer  ignominiously  abandoned  the  attack. 

The  writer  recalls  a  somewhat  similar  instance, 
but  one  even  better  exhibiting  the  cleverness  of  an 
old  woman,  which  occurred  in  the  year  1901.  A  man 
named  Orlando  J.  Hackett,  of  prepossessing  appear- 
ance and  manners,  was  on  trial,  charged  with  con- 
verting to  his  own  use  money  which  had  been 
intrusted  to  him  for  investment  in  realty.  The  com- 
plainant was  a  shrewd  old  lady,  who,  together  with 
her  daughter,  had  had  a  long  series  of  transactions 
with  Hackett  which  would  have  entirely  confused 
the  issue  could  the  defence  have  brought  them  before 
the  jury.  The  whole  contention  of  the  prosecution 
was  that  Hackett  had  received  the  money  for  one 
purpose  and  used  it  for  another.  During  prepara- 
tion for  the  trial  the  writer  had  had  both  ladies  in 
his  office  and  remembers  making  the  remark : 

''Now,  Mrs.  ,  don't  forget  that  the  charge 

here  is  that  you  gave  Mr.  Hackett  the  money  to  put 
into  real  estate.  Nothing  else  is  comparatively  of 
much  importance. ' ' 

**Be  sure  and  remember  that,  mother,"  the 
daughter  had  admonished  her. 

In  the  course  of  a  month  the  case  came  on  for  trial 
before  Recorder  Goff,  in  Part  II  of  the  General 


WOMEN  IN  THE  COUETS  291 

Sessions.    Mrs. gave  her  testimony  with  great 

positiveness.  Mr.  Lewis  Stuyvesant  Chanler,  now 
Lieutenant-Governor  of  the  State,  arose  to  cross- 
examine  her. 

** Madam/'  he  began  courteously,  ^*you  say  you 
gave  the  defendant  money  T* 

**I  told  him  to  put  it  into  real  estate,  and  he  said 
he  ivould!"  replied  Mrs. firmly. 

*^I  did  not  ask  you  that,  Mrs. ,''  politely  in- 
terjected Mr.  Chanler.  **How  much  did  you  give 
him!'' 

''/  told  him  to  put  it  into  real  estate^  and  he  said 
he  would ! ' '  repeated  the  old  lady  wearily, 

*^But,  madam,  you  do  not  answer  my  question!'' 
exclaimed  Chanler.    *  *  How  much  did  you  give  him  ? ' ' 

*^I  told  him  to  put  it  into  real "  began  the  old 

lady  again. 

^*Yes,  yes!"  cried  the  lawyer;  **we  know  that! 
Answer  the  question. ' ' 

*' estate,  and  he  said  he  would!^^  finished  the 

old  woman  innocently. 

^'If  your  Honor  please,  I  will  excuse  the  witness. 
And  I  move  that  her  answers  be  stricken  out !"  cried 
Chanler  savagely„ 

The  old  lady  was  assisted  from  the  stand,  but  as 
she  made  her  way  with  difficulty  towards  the  door 
of  the  court-room  she  could  be  heard  repeating 
stubbornly  : 

**I  told  him  to  put  it  into  real  estate, — and  he  said 
he  would!'' 

Almost  needless  to  say,  Hackett  was  convicted 
and  sentenced  to  seven  years  in  State's  prison. 

To  recapitulate,  the  quickness  and  positiveness  of 
women  make  them  ordinarily  better  witnesses  than 
men ;  they  are  vastly  more  difficult  to  cross-examine ; 


292         THE  PEISONER  AT  THE  BAR 

their  sex  protects  them  from  many  of  the  most 
effective  weapons  of  the  lawyer,  with  the  result  that 
they  are  the  more  ready  to  yield  to  prevarication; 
and,  even  where  the  possibility  of  complete  and 
unrestricted  cross-examination  is  afforded,  their 
tendency  to  inaccurately  inferential  reasoning,  and 
their  elusiveness  in  dodging  from  one  conclu- 
sion to  another,  render  the  opportunity  of  little 
value. 

In  general,  however,  women's  testimony  differs 
little  in  quality  from  that  of  men,  all  testimony 
being  subject  to  the  same  three  great  limitations 
irrespective  of  the  sex  of  the  witness,  and  the  con- 
clusions set  forth  above  are  merely  the  result  of  an 
effort  on  the  part  of  the  writer  to  comment  some- 
what upon  those  small  differences  which,  under  close 
scrutiny,  may  fairly  be  said  to  exist.  These  differ- 
ences are  quite  as  noticeable  at  the  breakfast-table 
as  in  the  court-room ;  and  are  no  more  patent  to  the 
advocate  than  to  the  ordinary  male  animal  whose 
forehead  habitually  reddens  when  he  hears  the  un- 
answerable reason  which,  in  default  of  all  others, 
explains  and  glorifies  the  mental  action  of  his  wife, 
sister  or  mother:    **Just  because!" 

AS   COMPLAINANTS   AND   DEFENDANTS 

The  ratio  of  women  to  men  indicted  and  tried  for 
crime  is,  roughly,  about  one  to  ten.  Could  ade- 
quate statistics  be  procured,  the  proportion  of  female 
to  male  complainants  in  criminal  cases  would  very 
likely  prove  to  be  about  the  same.  In  a  very  sub- 
stantial proportion,  therefore,  of  all  prosecutions 
for  crime  a  woman  is  one  of  the  chief  actors.  The 
law  of  the  land  compels  the  female  prisoner  to  sub- 


WOMEN   IN    THE    COURTS  293 

mit  the  question  of  her  guilt  or  innocence  to  twelve 
individuals  of  the  opposite  sex;  and  permits  the 
female  complainant  to  rehearse  the  story  of  her 
wrongs  before  the  same  collection  of  colossal  intel- 
lects and  adamantine  hearts. 

The  first  thing  the  ordinary  woman  hastens  to  do 
if  she  be  summoned  to  appear  in  a  court  of  justice 
is  not,  as  might  be  expected,  to  think  over  her  testi- 
mony or  try  to  recall  facts  obliterated  or  confused 
by  time,  but  to  buy  a  new  hat ;  and  precisely  the  same 
thing  is  true  of  the  female  defendant  called  to  the 
bar  of  justice,  whether  it  be  for  stealing  a  pair  of 
gloves  or  poisoning  her  lover. 

Yet  how  far  does  the  element  of  sex  defeat  the 
ends  of  justice  ?  To  answer  this  question  it  is  neces- 
sary to  determine  how  far  juries  are  liable  to  favor 
the  testimony  of  a  woman  plaintiff  merely  because 
she  is  a  woman,  and  how  far  sympathy  for  a  woman 
arraigned  as  a  prisoner  is  likely  to  warp  their  judg- 
ment. 

As  to  the  first,  it  is  fairly  safe  to  say  that  a  woman 
is  much  more  likely  to  win  a  verdict  in  a  civil  court 
or  to  persuade  the  jury  that  the  prisoner  is  guilty 
in  a  criminal  case  than  a  man  would  be  in  precisely 
similar  circumstances.  In  most  criminal  prosecu- 
tions for  the  ordinary  run  of  felonies  little  injustice 
is  likely  to  result  from  this.  There  is  one  exception, 
however,  where  juries  should  reach  conclusions  with 
extreme  caution,  namely,  where  certain  charges  are 
brought  by  women  against  members  of  the  opposite 
sex.  Here  the  jury  is  apt  to  leap  to  a  conclusion, 
rendered  easy  by  the  attractiveness  of  the  witness 
and  the  feeling  that  the  defendant  is  a  "cur  any- 
way,'' and  ought  to  be  "sent  up." 


294         THE  PRISONER  AT  THE  BAR 

The  difficulty  of  determining,  even  in  one's  office, 
the  true  character  of  a  plausible  woman  is  enhanced 
tenfold  in  the  court-room,  where  the  lawyer  is  gen- 
erally compelled  to  proceed  upon  the  assumption 
that  the  witness  is  a  person  of  irreproachable  life 
and  antecedents.  Almost  any  young  woman  may 
create  a  favorable  impression,  provided  her  taste 
in  dress  be  not  too  crude,  and,  even  when  it  is  so,  the 
jury  are  not  apt  to  distinguish  carefully  between 
that  which  cries  to  Heaven  and  that  which  is  merely 
*  *  elegant.  * ' 

When  the  complaining  witness  is  a  woman  who 
has  merely  lost  money  through  the  acts  of  the  de- 
fendant, the  jury  are  not  so  readily  moved  to  accept 
her  story  in  toto  as  when  the  crime  charged  is  of  a 
different  character.  They  realize  that  the  complain- 
ant, feeling  that  she  has  been  injured,  may  be  in- 
clined to  color  her  testimony,  perhaps  unconsciously, 
until  the  wrong  becomes  a  crime. 

An  ordinary  example  of  this  variety  of  prosecu- 
tion is  where  the  witness  is  a  young  woman  from  the 
East  Side,  usually  a  Polish  or  Russian  Jewess,  who 
charges  the  defendant,  a  youth  of  about  her  own  age, 
with  stealing  her  money  by  means  of  false  pre- 
tences. They  have  been  engaged  to  be  married,  and 
she  has  turned  over  her  small  savings  to  him  to  pur- 
chase the  diamond  ring  and  perhaps  set  him  up  in 
a  modest  business  of  his  own.  He  has  then  fallen  in 
love  with  some  other  girl,  has  broken  the  engage- 
ment, and  the  ring  now  adorns  the  fourth  finger  of 
her  rival.  Her  money  is  gone.  She  is  without  a  dot. 
She  hurries  with  her  parents  and  loudly  vociferating 
friends  to  the  Essex  Market  Police  Court,  and  se- 
cures a  warrant  for  the  defendant  on  the  theory  that 


WOMEN   IN   THE   COURTS  295 

he  defrauded  her  by  *^  trick  and  device '^  or  *^  false 
representations.''  Usually  the  only  ** representa- 
tion'' has  been  a  promise  to  marry. her.  Her  real 
motive  is  revenge  upon  her  faithless  fiance.  In  nine 
cases  out  of  ten  the  fellow  is  a  cad,  who  has  deliber- 
ately deserted  her  after  getting  her  money,  but  it  is 
doubtful  whether  any  real  crime  is  involved. 

If  the  judge  lets  the  case  go  to  the  jury  it  is  a  pure 
gamble  as  to  what  the  result  will  be,  and  it  may 
largely  turn  on  the  girl's  physical  attractiveness.  If 
she  be  pretty  and  demure  a  mixture  of  emotions  is 
aroused  in  the  jury.  **He  probably  did  love  her," 
say  the  twelve,  *' because  any  one  would  be  likely  to 
do  so.  If  he  did  love  her,  of  course  he  didn't  falsely 
pretend  to  do  so;  but  if  he  deserted  a  woman  like 
that  he  ought  to  be  in  jail  anyway."  Thus  the  argu- 
ment that  ought  to  acquit  in  fact  may  convict  the 
defendant.  If  the  rival  also  is  pretty,  hopeless  con- 
fusion results ;  while  if  the  complainant  be  a  homely 
girl  the  jury  feels  that  he  must  have  intended  to 
swindle  her  anyway,  as  he  could  never  have  honestly 
intended  to  marry  her.  Thus  in  any  case  the  Lo- 
thario is  apt  to  pay  a  severe  penalty  for  his  faith- 
lessness. 

The  man  prosecuted  by  a  woman,  provided  she 
cannot  be  persuaded  to  withdraw  the  charge  against 
him,  is  likely  to  get  but  cold  consideration  for  his 
side  of  the  story  and  short  shrift  in  the  jury-roonr . 
Turn  about,  if  he  can  get  a  young  and  attracflve 
woman  to  swear  to  his  alibi  or  good  reputation  the 
honest  masculine  citizen  whom  he  has  defrauded 
may  very  likely  have  to  whistle  for  his  revenge. 
Many  a  scamp  has  gone  free  by  producing  some 
sweetly  demure  maiden  who  faithfully  swears  that 


296         THE  PEISONER  AT  THE  BAR 

she  knows  him  to  be  an  honest  man.  A  blush  at  the 
psychological  moment  and  a  wink  from  the  lawyer 
is  quite  enough  to  lead  the  jury  to  believe  that,  if 
they  acquit  the  defendant,  they  will  ^^make  the  young 
lady  happy,''  whereas  if  he  is  convicted  she  will 
remain  for  aye  a  heart-broken  spinster.  Like  enough 
she  may  be  only  the  merest  acquaintance. 

The  writer  is  not  likely  to  forget  a  distinguished 
lawyer's  instructions  to  his  client — who  happened 
also  to  be  a  childhood  acquaintance — as  she  was 
about  to  go  into  court  as  the  plaintiff  in  a  suit  for 
damages : 

**I  would  fold  my  hands  in  my  lap,  Gwendolyn — 
yes,  like  that — and  be  calm,  very  calm.  And,  Gwen- 
dolyn, above  all  things,  be  demure,  Gwendolyn !  Be 
demure!" 

Gwendolyn  was  the  demurest  of  the  demure,  let- 
ting her  eyes  fall  beneath  their  pendant  black  lashes 
at  the  conclusion  of  each  answer,  and  won  her  case 
without  the  slightest  difficulty. 

The  unconscious  or  conscious  influence  of  women 
upon  the  intellects  of  jurjonen  has  given  rise  to  a 
very  prevalent  impression  that  it  is  difficult  if  not 
impossible  successfully  to  prosecute  a  woman  for 
crime.  This  feeling  expresses  itself  in  general 
statements  to  the  effect  that  as  things  stand  to- 
day a  woman  may  commit  murder  with  impunity. 
Experience,  supplemented  by  the  official  records, 
demonstrates,  however,  that,  curious  as  it  must 
seem,  the  same  sentiment  aroused  by  a  woman  sup- 
posed to  have  been  wronged  is  not  inspired  in  a  jury 
by  a  woman  accused  of  crime.  It  is,  indeed,  true 
that  juries  are  apt  to  be  more  lenient  with  women 
than  with  men,  but  this  leniency  shows  itself  not  in 


WOMEN   IN    THE    COURTS  297 

acquitting  them  of  the  crimes  charged  against  them, 
but  of  finding  them  guilty  in  lower  degrees. 

Of  course  flagrant  miscarriages  of  justice  fre- 
quently occur,  which,  by  reason  of  their  widespread 
publicity  in  the  press,  would  seem  to  justify  the 
almost  universal  opinion  that  women  are  immune 
from  the  penalities  for  homicide.  It  is  also  true 
that  such  miscarriages  of  justice  are  more  likely 
when  the  defendant  is  a  woman  than  if  he  be  a  man. 

One  of  these  hysterical  acquittals  which  give  color 
to  popular  impression,  but  which  the  writer  believes 
to  be  an  exception,  was  the  case  of  a  young 
mother  tried  and  acquitted  for  murder  in  the 
first  degree,  December  22,  1904.  This  young 
woman,  whose  history  was  pathetic  in  the  extreme, 
was  shown  clearly  by  the  evidence  to  have  deliber- 
ately taken  the  life  of  her  child  by  giving  it  carbolic 
acid.  The  story  was  a  shocking  one,  yet  the  jury 
apparently  never  considered  at  all  the  possibility  of 
convicting  her,  but  on  retiring  to  the  jury-room 
spent  their  time  in  discussing  how  much  money  they 
should  present  her  on  her  acquittal. 

No  better  actor  ever  played  a  part  upon  the  court- 
room stage  than  old  ^ '  Bill ' '  Howe.  His  every  move 
and  gesture  was  considered  with  reference  to  its 
effect  upon  the  jury,  and  the  climax  of  his  summing- 
up  was  always  accompanied  by  some  dramatic  exhi- 
bition calculated  to  arouse  sympathy  for  his  client. 
Himself  an  adept  at  shedding  tears  at  will,  he  seemed 
able  to  induce  them  when  needed  in  the  lachrymal 
glands  of  the  most  hardened  culprit  whom  he  hap- 
pened to  be  defending. 

Mr.  Wellman  tells  the  story  of  how  he  was 
once  prosecuting  a  woman  for  the  murder  of  her 


298         THE  PEISONER  AT  THE  BAR 

lover,  whom  she  had  shot  rather  than  allow  him  to 
desert  her.  She  was  a  parson  ^s  daughter  who  had 
gone  wrong  and  there  seemed  little  to  be  said  in  her 
behalf.  She  sat  at  the  bar  the  picture  of  injured 
innocence,  with  a  look  of  spirituality  which  she  must 
have  conjured  up  from  the  storehouse  of  her  memo- 
ries of  her  ftvther.  Howe  was  rather  an  exquisite  so 
far  as  his  personal  habits  were  concerned,  and  al- 
lowed his  finger-nails  to  grow  to  an  extraordinary 
length.  He  had  arranged  that  at  the  climax  of  his 
address  to  the  jury  he  would  turn  and,  tearing  away 
the  slender  hands  of  his  client-  from  her  tear-stained 
face,  challenge  the  jury  to  find  guilt  written  there. 
Wellman  was  totally  unprepared  for  this  and  a 
shiver  ran  down  his  spine  when  he  saw  Howe,  his 
face  apparently  surcharged  with  emotion,  turn  sud- 
denly towards  his  client  and  roughly  thrust  away 
her  hands.  As  he  did  so  he  embedded  his  finger-nails 
in  her  cheeks,  and  the  girl  uttered  an  involuntary 
scream  of  nervous  terror  and  pain  that  made  the 
jury  turn  cold. 

**Look,  gentlemen!  Look  in  this  poor  creature's 
face !  Does  she  look  like  a  guilty  woman  ?  No !  A 
thousand  times  no !  Those  are  the  tears  of  innocence 
and  shame!  Send  her  back  to  her  aged  father  to 
comfort  his  old  age !  Let  him  clasp  her  in  his  arms 
and  press  his  trembling  lips  to  her  hollow  eyes !  Let 
him  wipe  away  her  tears  and  bid  her  sin  no  more !'' 

The  jury  acquitted,  and  Wellman,  aghast,  fol- 
lowed them  downstairs  to  inquire  how  such  a  thing 
were  possible.  The  jurors  said  that  they  had  agreed 
to  disclose  nothing  of  their  deliberations. 

*'But,"  explained  Wellman,  **you  see,  in  a  way  I 
am  your  attorney,  and  I  want  to  know  how  to  do 


WOMEN  IN   THE   COURTS 


29i 


better  next  time.  She  had  offered  to  plead  guilty 
if  she  could  get  off  with  twenty  years ! ' ' 

The  abashed  jury  slunk  downstairs  in  silence  and 
the  secret  of  their  deliberations  remains  as  yet 
untold. 

In  spite  of  such  cases,  where  guilty  women  have 
been  acquitted  through  maudlin  sentiment  or  in  re- 
sponse to  popular  clamor,  nothing  could  be  more 
erroneous  than  the  idea  that  few  women  who  are 
brought  to  the  bar  of  justice  are  made  to  suffer  for 
their  offences.  Thus,  although  no  woman  has  suf- 
fered the  death  penalty  in  New  York  County  in 
twenty  years,  the  average  number  of  convictions  for 
crime  is  practically  the  same  for  women  as  for  men 
in  proportion  to  the  number  indicted.  The  last  unre- 
versed conviction  of  a  woman  for  murder  in  the  first 
degree  was  that  of  Chiara  Cignarale,  in  May,  1887. 
Her  sentence  was  commuted  to  life  imprisonment. 
Since  then  thirty  women  have  been  actually  tried 
before  juries  for  homicide  with  the  following  results : 

Convicted  of  murder  in  first  degree 0 

"         "  murder  in  second  degree 3 

"         "  manslaughter  in  first  degree 10 

"         "  manslaughter  in  second  degree 10 

Acquitted 7 

Total 30 

The  percentage  of  convictions  to  acquittals  is  as 
follows : 


Convictions 

Acquittals 

Convictions 
Per  Cent 

Acquittals 
Per  Cent 

1887-1907 

23 

7 

77 

23 

It  is  distinctly  interesting  to  compare  this  with 
the  table  showing  the  results  of  all  the  homicide 
trials  for  the  past  eight  years  irrespective  of  the  sex 
of  the  defendants : 


300 


THE  PEISONER  AT  THE  BAR 


Convictions 

Acquittals 

Convictions 
Per  Cent 

Acquittals 
Per  Cent 

1900 

5 

17 
15 
24 
19 
18 
21 
16 

12 

17 

11 

8 

14 
13 
22 
10 

29 
50 

58 
75 
58 
58 
49 
62 

71 

1901 

50 

1902 

42 

1903        .... 

25 

1904  

42 

1905 

42 

1906 

51 

1907 

38 

Total 135 

107 

Aver.   55 

Aver.  45 

The  reader  will  observe  that  the  percentage  of 
convictions  to  acquittals  of  women  defendants  aver- 
ages twenty-two  per  cent  greater  than  the  percent- 
age for  both  sexes.  A  more  elaborate  table  would 
show  that  where  the  defendants  are  men  there  are 
a  greater  proportionate  number  of  acquittals,  but 
more  verdicts  in  higher  degrees.  A  verdict  of  man- 
slaughter in  the  second  degree  in  the  case  of  a  man 
charged  with  murder  is  infrequent,  but  convictions 
of  murder  in  the  second  degree  are  exceedingly 
common. 

The  reason  for  the  higher  percentage  of  convic- 
tions of  women  is  that  fewer  women  who  commit 
crime  are  prosecuted  than  men,  and  that  they  are 
rarely  indicted  unless  they  are  clearly  guilty  of  the 
degree  of  crime  charged  against  them;  while  prac- 
tically every  man  who  is  charged  with  homicide  and 
who,  it  seems,  may  be  found  guilty  is  indicted  for 
murder  in  the  first  degree. 

The  trial  of  women  for  crime  invariably  arouses 
keen  public  interest,  and  the  dethronement  of  a  Czar, 
or  the  assassination  of  an  Emperor,  pales  to  in- 
significance before  the  prosecution  of  a  woman 
for  murder.  Some  of  this  interest  is  fictitious 
and  stimulated  merely  by  the  yellow  press,  but  a 


WOMEN   IN   THE    COURTS  301 

great  deal  of  it  is  genuine.  The  writer  remem- 
bers attending  a  dinner  of  gray-headed  judges 
and  counsellors  during  the  trial  of  Ann  Eliza,  alias 
^'Nan,'*  Patterson,  where  one  would  have  supposed 
that  the  lightest  subject  of  conversation  would  be 
not  less  weighty  than  the  constitutionality  of  an  in- 
come tax,  and  finding  to  his  astonishment  that  the 
only  topic  for  which  they  showed  any  zest  was 
whether  ^^Nan''  would  be  found  guilty. 

One  of  the  earliest,  if  not  the  earliest,  record  of  a 
woman  being  held  for  murder  is  that  of  Agnes 
Archer,  indicted  by  twelve  men  on  April  4,  1435, 
sworn  before  the  mayor  and  coroner  to  inquire  as  to 
the  death  of  Alice  Colynbourgh.  The  quaint  old 
report  begins  in  Latin,  but  '  ^  the  pleadings ' '  are  set 
forth  in  the  language  of  the  day,  as  follows ; 

** Agnes  Archer,  is  that  thy  name?  which  an- 
swered, yes.  .  .  .  Thou  art  endyted  that  thou 
.  .  .  .  feloney  moderiste  her  with  a  knyff  fyve 
tymes  in  the  throte  stekyng,  throwe  the  wheche  stek- 
yng  the  saide  Alys  is  deed.  ...  I  am  not  guilty 
of  thoo  dedys,  ne  noon  of  hem,  God  help  me  so. 
.  .  .  How  wylte  thou  acquite  the?  .  .  .  By 
God  and  by  my  neighbours  of  this  town." 

The  subsequent  history  of  Agnes  is  lost  in  obscu- 
rity, but  since  she  had  to  procure  but  thirty-six 
compurgators  who  were  prepared  to  swear  that  they 
believed  her  innocent,  and  as  she  was  at  liberty  to 
choose  these  herself  from  her  native  village  of  Win- 
chelsea,  it  is  probable  that  she  escaped.* 

Fortunately  the  sight  of  a  woman,  save  of  the  very 
lowest  class,  at  the  bar  of  justice  is  rare.  The 
number  of  cases  where  women  of  good  environ- 

*Cf.  Thayer,  as  cited,  supra. 


302         THE  PRISONER  AT  THE  BAR 

ment  appear  as  defendants  in  the  criminal  courts  in 
the  course  of  a  year  may  be  numbered  upon  the 
fingers  of  a  single  hand,  and,  although  the  number  of 
female  defendants  may  equal  ten  per  cent  of  the 
total  number  of  males,  not  one-tenth  of  the  women 
brought  to  .he  bar  of  justice  have  had  the  benefit  of 
an  honest  bringing  up  and  good  surroundings. 


CHAPTER  XVI 
TRICKS  OF  THE  TRADE 

*  *  Teicks  and  treachery, ' '  said  Benjamin  Franklin, 
**are  the  practice  of  fools  that  have  not  wit  enough 
to  be  honest."  Had  the  kindly  philosopher  been 
familiar  with  all  the  exigencies  of  the  criminal  law 
he  might  have  added  a  qualification  to  this  somewhat 
general,  if  indisputably  moral,  maxim.  Though  it 
doubtless  remains  true  as  a  guiding  principle  of  life 
that  *^ Honesty  is  the  best  policy,''  it  would  be  an 
unwarrantable  aspersion  upon  the  intellectual  qual- 
ities of  the  members  of  the  criminal  bar  to  say  that 
the  tricks  by  virtue  of  which  they  often  get  their 
clients  off  are  ^'the  practice  of  fools.' ^  On  the  con- 
trary, observation  would  seem  to  indicate  that  in 
many  instances  the  wiser,  or  at  least  the  more  suc- 
cessful, the  practitioner  of  criminal  law  becomes, 
the  more  numerous  and  ingenious  become  the 
^  ^  tricks ' '  which  are  his  stock  in  trade.  This  must  not 
be  taken  to  mean  that  there  are  not  high-minded  and 
conscientious  practitioners  of  criminal  law,  many  of 
them  financially  successful,  some  filled  with  a  noble 
humanitarian  purpose,  and  some  drawn  to  their  call- 
ing by  a  sincere  enthusiasm  for  the  vocation  of  the 
advocate  which,  in  these  days  of  '* business"  law  and 
commercial  methods,  reaches  perhaps  its  highest 
form  in  the  criminal  courts. 

There  are  no  more  ^^ tricks"  practised  in  these 

303 


304         THE  PRISONER  AT  THE  BAB 

tribunals  than  in  the  civil,  but  they  are  more  ingen- 
ious in  conception,  more  lawless  in  character,  bolder 
in  execution  and  less  shamefaced  in  detection. 

Let  us  not  be  too  hard  upon  our  brethren  of  the 
criminal  branch.  Truly,  their  business  is  to  **get 
their  clients  off."  It  is  unquestionably  a  generally 
accepted  principle  that  it  is  better  that  ninety-nine 
guilty  men  should  escape  than  that  one  innocent  man 
should  be  convicted.  However  much  persons  of  ar- 
gumentative or  philosophic  disposition  may  care  to 
quarrel  with  this  doctrine,  they  must  at  least  admit 
that  it  would  doubtless  appear  to  them  of  vital  truth 
were  they  defending  some  trembling  client  concern- 
ing whose  guilt  or  innocence  they  were  themselves 
somewhat  in  doubt.  * '  Charity  believeth  all  things, ' ' 
and  the  prisoner  is  entitled  to  every  reasonable 
doubt,  even  from  his  own  lawyer.  It  is  the  lawyer  *s 
business  to  create  such  a  doubt  if  he  can,  and  we 
must  not  be  too  censorious  if,  in  his  eagerness  to 
raise  this  in  the  minds  of  the  jury,  he  sometimes 
oversteps  the  bounds  of  propriety,  appeals  to  popu- 
lar prejudices  and  emotions,  makes  illogical  deduc- 
tions from  the  evidence,  and  impugns  the  motives  of 
the  prosecution.  The  district  attorney  should  be 
able  to  take  care  of  himself,  handle  the  evidence  in 
logical  fashion,  and  tear  away  the  flimsy  curtain  of 
sentimentality  hoisted  by  the  defence.  These  are 
hardly  ** tricks''  at  all,  but  sometimes  under  the 
name  of  advocacy  a  trick  is  *^  turned"  which  deserves 
a  much  harsher  name. 

Not  long  ago  a  celebrated  case  of  murder  was 
moved  for  trial  after  the  defendant's  lawyer  had 
urged  him  in  vain  to  offer  a  plea  of  murder  in  the 
second  degree.    A  jury  was  summoned  and,  as  is 


TEICKS    OF    THE    TRADE  305 

the  usual  custom  in  such  cases,  examined  separately 
on  the  ^^voir  dire''  as  to  their  fitness  to  serve.  The 
defendant  was  a  German,  and  the  prosecutor  suc- 
ceeded in  keeping  all  Germans  off  the  jury  until  the 
eleventh  seat  was  to  be  filled,  when  he  found  his  per- 
emptory challenges  exhausted.  Then  the  lawyer  for 
the  prisoner  managed  to  slip  in  a  stout  old  Teuton, 
who  replied,  in  answer  to  a  question  as  to  his  place 
of  nativity,  ^^Schleswig-Holstein.''  The  lawyer 
made  a  note  of  it,  and,  the  box  filled,  the  trial  pro- 
ceeded with  unwonted  expedition. 

The  defendant  was  charged  with  having  murdered 
a  woman  with  whom  he  had  been  intimate,  and  his 
guilt  of  murder  in  the  first  degree  was  demonstrated 
upon  the  evidence  beyond  peradventure.  At  the 
conclusion  of  the  case,  the  defendant  not  having 
dared  to  take  the  stand,  the  lawyer  arose  to  address 
the  jury  in  behalf  of  what  appeared  a  hopeless  cause. 
Even  the  old  German  in  the  back  row  seemed 
plunged  in  soporific  inattention.  After  a  few  intro- 
ductory remarks  the  lawyer  raised  his  voice  and  in 
heart-rending  tones  began: 

**In  the  beautiful  county  of  Schleswig-Holstein 
sits  a  woman  old  and  gray,  waiting  the  message  of 
your  verdict  from  beyond  the  seas."  (Number  11 
opened  his  eyes  and  looked  at  the  lawyer  as  if  not 
quite  sure  of  what  he  had  heard.)  *^ There  she  sits'' 
(continued  the  attorney),  *'in  Schleswig-Holstein,  by 
her  cottage  window,  waiting,  waiting  to  learn 
whether  her  boy  is  to  be  returned  to  her  outstretched 
arms."  (Number  11  sat  up  and  rubbed  his  fore- 
head.) **Had  the  woman,  who  so  unhappily  met  her 
death  at  the  hands  of  my  unfortunate  client,  been 
like    those    women    of    Schleswig-Holstein — noble, 


306         THE  PEISONEE  AT  THE  BAR 

sweet,  pure,  lovely  women  of  Schleswig-Holstein — • 
I  should  have  naught  to  say  to  you  in  his  behalf." 
(Number  11  leaned  forward  and  gazed  searchingly 
into  the  lawyer's  face.)  *^But  alas,  no!  Schleswig- 
Holstein  produces  a  virtue,  a  loveliness,  a  nobility 
of  its  owa/'  (Number  11  sat  up  and  proudly  ex- 
panded his  chest.) 

When,  after  about  an  hour  or  more  of  Schleswig- 
Holstein  the  defendant's  counsel  surrendered  the 
floor  to  the  district  attorney,  the  latter  found  it  quite 
impossible  to  secure  the  slightest  attention  from  the 
eleventh  juror,  who  seemed  to  be  spending  his  time  in 
casting  compassionate  glances  in  the  direction  of  the 
prisoner.  In  due  course  the  jury  retired,  but  had  no 
sooner  reached  their  room  and  closed  the  door  than 
the  old  Teuton  cried,  *'Dot  man  iss  not  guilty!^' 
The  other  eleven  wrestled  with  him  in  vain.  He 
remained  impervious  to  argument  for  seventeen 
hours,  declining  to  discuss  the  evidence,  and  mutter- 
ing at  intervals,  **Dot  man  iss  not  guilty  f  The 
other  eleven  stood  unanimously  for  murder  in  the 
first  degree,  which  was  the  only  logical  verdict  that 
could  possibly  have  been  returned  upon  the  evidence. 

At  last,  worn  out  with  their  efforts,  they  finally 
induced  the  old  Teuton  to  compromise  with  them 
on  a  verdict  of  manslaughter.  Wearily  they  strag- 
gled in,  the  old  native  of  Schleswig-Holstein  bring- 
ing up  the  rear,  bursting  with  exultation  and  with 
victory  in  his  eye. 

**  Gentlemen  of  the  jury,  have  you  agreed  upon  a 
verdict?"  inquired  the  clerk. 

**We  have,"  replied  the  foreman. 

**How  say  you,  do  you  find  the  defendant  guilty 
ornot  guilty?" 


TEICKS   OF   THE   TRADE  307 

** Guilty — of  manslaughter/'  returned  the  foreman 
feebly. 

The  district  attorney  was  aghast  at  such  a  mis- 
carriage of  justice,  and  the  judge  showed  plainly  by 
his  demeanor  his  opinion  of  such  a  verdict.  But  the 
old  inhabitant  of  Schleswig-Holstein  cared  for  this 
not  a  whit.  The  old  mother  in  Schleswig-Holstein 
might  still  clasp  her  son  in  her  arms  before  she  died ! 
The  defendant  was  arraigned  at  the  bar.  Then  for 
the  first  time,  and  to  the  surprise  and  disgust  of  No. 
11,  he  admitted  in  answer  to  the  questions  of  the 
clerk  that  his  parents  were  both  dead  and  that  he 
was  born  in  Hamburg,  a  town  for  whose  inhabitants 
the  old  juryman  had,  like  others  of  his  compatriote, 
a  constitutional  antipathy. 

The  ** tricks''  of  the  trade  as  practised  by  the 
astute  and  unscrupulous  criminal  lawyer  vary  with 
the  stage  of  the  case  and  the  character  of  the  crime 
charged.  They  are  also  adapted  with  careful  atten- 
tion to  the  disposition,  experience  and  capacity  of 
the  particular  district  attorney  who  happens  to  be 
trying  the  case  against  the  defendant.  An  illustra- 
tion of  one  of  these  occurred  during  the  prosecution 
of  a  bartender  for  selling  ** spirituous  liquors"  with- 
out a  proper  license.  He  was  defended  by  an  old 
war-horse  of  the  criminal  bar  famous  for  his 
astuteness  and  ability  to  laugh  a  case  out  of  court. 
The  assistant  district  attorney  who  appeared 
against  him  was  a  young  man  recently  appointed  to 
office,  and  who  was  almost  overcome  at  the  idea  of 
trying  a  case  against  so  well  known  a  practitioner. 
He  had  personally  conducted  but  very  few  cases,  had 
an  excessive  conception  of  his  own  dignity,  and 
dreaded  nothing  so  much  as  to  appear  ridiculous. 


308         THE  PEISONEE  AT  THE  BAR 

Everything,  except  the  evidence,  favored  the  defend- 
ant, who,  however,  was,  beyond  every  doubt,  guilty 
of  the  offence  charged. 

The  young  assistant  put  in  his  case,  calling  his 
witnesses  one  by  one,  and  examining  them  with  the 
most  f e\  3rish  anxiety  lest  he  should  forget  some- 
thing. The  lawyer  for  the  defence  made  no  cross- 
examination  and  contented  himself  with  smiling 
blandly  as  each  witness  left  the  stand.  The  youthful 
prosecutor  became  more  and  more  nervous.  He  was 
sure  that  something  was  wrong,  but  he  couldn't  just 
make  out  what.  At  the  conclusion  of  the  People's 
case  the  lawyer  inquired,  with  a  broad  grin,  *4f  that 
was  all. ' ' 

The  young  assistant  replied  that  it  was,  and  that, 
in  his  opinion,  it  was  *' quite  enougho" 

**Let  that  be  noted  by  the  stenographer,''  re- 
marked the  lawyer.  *  ^  Now,  if  your  Honors  please, ' ' 
he  continued,  addressing  the  three  judges  of  the 
Special  Sessions,  **you  all  know  how  interested  I 
am  to  see  these  young  lawyers  growing  up.  I  like  to 
help  'em  along — give  'em  a  chance — teach  'em  a 
thing  or  two.  I  trust  it  may  not  be  out  of  place  for 
me  to  say  that  I  like  my  young  friend  here  and  think 
he  tried  his  case  very  well.  But  he  has  a  great  deal 
to  learn.  I'm  always  glad,  as  I  said,  to  give  the  boys 
a  chance — to  give  'em  a  little  experience.  I  shall 
not  put  my  client  upon  the  stand.  It  is  not 
necessary.  The  fact  is/'  turning  suddenly  to  the 
unfortunate  assistant  district  attorney — **my  client 
has  a  license."  He  drew  from  his  pocket  a  folded 
paper  and  handed  it  to  the  paralyzed  young  attor- 
ney with  the  harsh  demand:  ^*What  do  you  say  to 
that?" 


TEICKS   OF   THE   TEADE  309 

The  assistant  took  the  paper  in  trembling  fingers 
and  perused  it  as  well  as  he  could  in  his  unnerved 
condition. 

*  *  Mr.  District  Attorney, ' '  remarked  the  presiding 
justice  dryly  (which  did  not  lessen  the  confusion  of 
the  young  lawyer),  **is  this  a  fact?  Has  the  defend- 
ant a  license  ? " 

**Yes,  your  Honors,"  replied  the  assistant;  **this 
paper  seems  to  be  a  license." 

** Defendant  discharged!"  remarked  the  court 
briefly. 

The  prisoner  stepped  from  the  bar  and  rapidly 
disappeared  through  the  door  of  the  court-room. 
After  enough  time  had  elapsed  to  give  him  a  good 
start  and  while  another  case  was  being  called,  the 
old  lawyer  leaned  over  to  the  assistant  and  remarked 
with  a  chuckle : 

**I  am  always  glad  to  give  the  boys  a  chance — 
help  'em  along — teach  'em  a  little.  That  license  was 
a  6 ear  license!" 

BEFORE   TRIAL. 

To  begin  at  the  beginning,  whenever  a  person  has 
been  arrested,  charged  with  crime,  and  has  secured 
a  criminal  lawyer  to  defend  him,  the  first  move  of 
the  latter  is  naturally  to  try  and  nip  the  case  in  the 
bud  by  inducing  the  complaining  witness  to  abandon 
the  prosecution.  In  a  vast  number  of  cases  he  is 
successful.  He  appeals  to  the  charity  of  the  injured 
party,  quotes  a  little  of  the  Scriptures  and  the 
**  Golden  Eule,"  pictures  the  destitute  condition  of 
the  defendant's  family  should  he  be  cast  into  prison, 
and  the  dragging  of  an  honored  name  in  the  gutter 
if  he  should  be  convicted.    Few  complainants  have 


310         THE  PRISONER  AT  THE  BAR 

ever  before  appeared  in  a  police  court,  and  are  filled 
with  repugnance  at  the  rough  treatment  of  prisoners 
and  the  suffering  which  they  observe  upon  every 
side.  After  they  have  seen  the  prisoner  emerge 
from  the  cells,  pale,  hollow-eyed,  bedraggled,  and 
have  beh')ld  the  tears  of  his  wife  and  children  a3; 
they  crowd  around  the  husband  and  father,  they 
begin  to  realize  the  horrible  consequences  of  a  crim- 
inal prosecution  and  to  regret  that  they  ever  took 
the  steps  which  have  brought  the  wrong-doer  where 
he  is.  The  district  attorney  has  not  yet  taken  up  the 
case ;  the  prosecution  up  to  this  point  is  of  a  private 
character ;  there  are  loud  promises  of  ' '  restitution ' ' 
and  future  good  behavior  from  the  defendant,  and 
the  occasion  is  ripe  for  the  lawyer  to  urge  the  com- 
plainant to  ** temper  justice  with  mercy''  and  with- 
draw *^  before  it  be  too  late  and  the  poor  man  be 
ruined  forever.'' 

If  the  complainant  is,  however,  bent  on  bringing 
the  defendant  to  justice  and  remains  adamantine 
to  the  arguments  of  the  lawyer  and  the  tears  of  the 
defendant's  family  connections,  it  remains  for  the 
prisoner's  attorney  to  endeavor  to  get  the  case  ad- 
journed ** until  matters  can  be  adjusted" — to  wit, 
restitution  made  if  money  has  been  stolen,  or  doc- 
tors' bills  paid  if  a  head  has  been  cracked,  with  per- 
haps another  chance  of  ** pulling  off"  the  complain- 
ant and  his  witnesses.  Failing  in  an  attempt  to 
secure  an  adjournment,  two  courses  remain  open: 
first,  to  persuade  the  court  that  the  matter  is  a  trivial 
one  arising  out  of  petty  spite,  is  all  a  mistake,  or  that 
at  best  it  is  a  case  of  disorderly  conduct"  (and  thus 
induce  the  judge  to  'Hum  the  case  out"  or  inflict 
some  trifling  punishment  in  the  shape  of  a  fine) ;  or, 


TEICKS    OF    THE    TEADE  311 

second,  if  it  be  clear  that  a  real  crime  has  been 
committed,  to  clamor  for  an  immediate  hearing  m 
order,  if  it  be  secured,  to  subject  the  prosecution's 
witnesses  to  a  most  exhaustive  cross-examination, 
and  thus  get  a  clear  idea  of  just  what  evidence  there 
is  against  the  accused. 

At  the  conclusion  of  the  complainant's  case,  if  it 
appear  reasonably  certain  that  the  magistrate  will 
*'hold"  the  prisoner  for  the  action  of  a  superior 
court,  the  lawyer  will  then  *' waive  further  examina- 
tion," or,  in  other  words,  put  in  no  defence,  prefer- 
ring the  certainty  of  having  to  face  a  jury  trial  to 
affording  the  prosecution  an  opportunity  to  discover 
exactly  what  defence  will  be  put  in  and  to  secure  evi- 
dence in  advance  of  the  trial  to  rebut  it.  Thus  >t 
rarely  happens  in  criminal  cases  of  importance  that 
the  district  attorney  knows  what  the  defence  is  to  be 
until  the  defendant  himself  takes  the  stand,  and,  by 
** waiving  further  examination"  in  the  police  court, 
the  astute  criminal  attorney  may  select  at  his  leisure 
the  defence  best  suited  to  fit  in  with  and  render 
nugatory  the  prosecution's  evidence. 

The  writer  has  frequently  been  told  by  the  attor- 
ney for  a  defendant  on  trial  for  crime  that  *  ^  the  de- 
fence has  not  yet  been  decided  upon. ' '  In  fact,  such 
statements  are  exceedingly  common.  In  many 
courts  the  attitude  of  all  parties  concerned  seems  to 
be  that  the  defendant  will  put  up  a  perjured  defence 
(so  far  as  his  own  testimony  is  concerned,  at  any 
rate)  as  a  matter  of  course,  and  that  this  is  hardly 
to  be  taken  against  him. 

On  the  other  hand,  if  a  guilty  defendant  has  been 
so  badly  advised  as  to  give  his  own  version  of  the 
case  before  the  magistrate  in  the  first  instance,  it 


312         THE  PRISONER  AT  THE  BAR 

requires  but  slight  assiduity  on  the  part  of  the  dis- 
trict attorney  to  secure,  in  the  interval  between  the 
hearing  and  the  jury  trial,  ample  evidence  to  re- 
but it. 

As  illustrating  merely  the  fertility  and  resource- 
fulness of  some  defendants  (or  perhaps  their  coun- 
sel), tnc  writer  recalls  a  case  which  he  tried  in  the 
year  1902  where  the  defendant,  a  druggist,  was 
charged  with  manslaughter  in  having  caused  the 
death  of  an  infant  by  filling  a  doctor's  prescription 
for  calomel  with  morphine.  It  so  happened  that  two 
jars  containing  standard  pills  had  been  standing 
side  by  side  upon  an  adjacent  shelf,  and,  a  prescrip- 
tion for  morphine  having  come  in  at  the  same  time 
as  that  for  the  calomel,  the  druggist  had  carelessly 
filled  the  morphine  prescription  with  calomel,  and  the 
calomel  prescription  with  morphine.  The  adult  for 
whom  the  morphine  had  been  prescribed  recovered 
immediately  under  the  beneficent  influence  of  the 
calomel,  but  the  baby  for  whom  the  calomel  had  been 
ordered  died  from  the  effects  of  the  first  morphine 
pill  administered.  All  this  had  occurred  in  1897 — 
five  years  before.  The  remainder  of  the  pills  had 
disappeared. 

Upon  the  trial  (no  inconsistent  contention  having 
been  entered  in  the  police  court)  the  prisoner's 
counsel  introduced  six  separate  defences,  to  wit: 
Tlmt  the  prescription  had  been  properly  filled 
with  calomel  and  that  the  child  had  died  from  natu- 
ral causes,  the  following  being  suggested : 

1.  Acute  gastritis. 

2.  Acute  nephritis. 

3.  Cerebro-spinal  meningitis. 

4.  Fulminating  meningitis. 


TEICKS   OF   THE   TEADE  313 

5.  That  the  child  had  died  of  apomorphine,  a 
totally  distinct  poison. 

6.  That  it  had  received  and  taken  calomel,  but 
that,  having  eaten  a  small  piece  of  pickle  shortly 
before,  the  conjunction  of  the  vegetable  acid  with 
the  calomel  had  formed,  in  the  child's  stomach,  a 
precipitate  of  corrosive  sublimate,  from  which  it 
had  died. 

These  were  all  argued  with  great  learning.  Dur- 
ing the  trial  the  box  containing  the  balance  of  the 
pills,  which  the  defence  contended  were  calomel,  un- 
expectedly turned  up.  It  has  always  been  one  of 
the  greatest  regrets  of  the  writer's  life  that  he  did 
not  then  and  there  challenge  the  defendant  to  eat  one 
of  the  pills  and  thus  prove  the  good  faith  of  his 
defence. 

This  was  one  of  the  very  rare  cases  where  a  chem- 
ical analysis  has  been  conducted  in  open  court. 
The  chemist  first  tested  a  standard  trade  mor- 
phine pill  with  sulphuric  acid,  so  that  the  jury 
could  personally  observe  the  various  color  reac- 
tions for  themselves.  He  then  took  one  of  the  con- 
tested pills  and  subjected  it  to  the  same  test.  The 
first  pill  had  at  once  turned  to  a  brilliant  rose,  but 
the  contested  pill,  being  antiquated,  **hung  fire," 
as  it  were,  for  some  seconds.  As  nothing  occurred, 
dismay  made  itself  evident  on  the  face  of  the  prose- 
cutor, and  for  a  moment  he  felt  that  all  was  lost. 
Then  the  five-year-old  pill  slowly  turned  to  a  faint 
brown,  changed  to  a  yellowish  red,  and  finally  broke 
into  an  ardent  rose.  The  jury  settled  back  into  their 
seats  with  an  audible  *'Ah!''  and  the  defendant  was 
convicted. 

Let  us  return,  however,  to  that  point  in  the  pro- 


314         THE  PEISONER  AT  THE  BAR 

ceedings  where  the  defendant  has  been  **held  for 
triaP'  by  the  magistrate.  The  prisoner's  counsel 
now  endeavors  to  convince  the  district  attorney  that 
^Hhere  is  nothing  in  the  case/'  and  continues  unre- 
mittingly to  work  upon  the  feelings  of  the  complain- 
ant. If  he  finds  that  his  labors  are  likely  to  be 
fruitless  in  both  directions,  he  may  now  seek  an 
opportunity  to  secure  permission  for  his  client  to 
appear  before  the  grand  jury  and  explain  away,  if 
possible,  the  charge  against  him. 

We  will  assume,  however,  that,  in  spite  of  the 
assiduity  of  his  lawyer,  the  prisoner  has  at  last  been 
indicted  and  is  awaiting  trial.  Wliat  can  be  done 
about  it  1  Of  course,  if  the  case  could  be  indefinite!  y 
adjourned,  the  complainant  or  his  chief  witness 
might  die  or  move  away  to  some  other  jurisdiction, 
and  if  the  indictment  could  be  ^^pigeon-holed"  the 
case  might  die  a  natural  death  of  itself.  Indict- 
ments, however,  in  New  York  County,  whatever  may 
be  the  case  elsewhere,  are  no  longer  *^ pigeon-holed,'' 
and  they  cannot  be  adequately  ^ '  lost, ' '  since  certified 
copies  are  made  of  each.  The  next  step,  therefore, 
is  to  secure  as  long  a  time  as  possible  before  trial. 

Usually  a  prisoner  has  nothing  to  lose  and  every- 
thing to  gain  by  delay,  and  the  excuses  offered  for 
adjournment  are  often  ingenious  in  the  extreme.  The 
writer  knows  one  criminal  attorney  who,  if  driven  to 
the  wall  in  the  matter  of  excuses,  will  always  serenely 
announce  the  death  of  a  near  relative  and  the  obliga- 
tion devolving  upon  him  to  attend  the  funeral.  An- 
other, as  a  last  resort,  regularly  is  attacked  in  open 
court  by  severe  cramps  in  the  stomach.  If  the  court 
insists  on  the  trial  proceeding,  he  invariably  recov- 
ers.   Of  course,  there  are  many  legitimate  reasons 


TRICKS   OF   THE   TRADE  315 

for  adjourning  cases  which  the  prosecution  is  pow- 
erless to  combat. 

The  most  effective  method  invoked  to  secure  delay, 
and  one  which  it  is  practically  useless  for  the  dis- 
trict attorney  to  oppose,  is  an  application  *^to  take 
testimony"  upon  commission  in  some  distant  place. 
Here  again  it  must  be  borne  in  mind  that  such  appli- 
cations are  often  legitimate  and  proper  and  should 
be  granted  in  simple  justice  to  the  defendant.  Al- 
though this  right  to  take  the  testimony  of  absent 
witnesses  is  confined  in  New  York  State  to  the  dfj- 
fendant  and  does  not  extend  to  the  prosecution,  and 
is  undoubtedly  often  the  subject  of  much  abuse,  it  not 
infrequently  is  the  cause  of  saving  an  innocent  man. 

An  example  of  this  was  the  case  of  William 
H.  Ellis,  recently  brought  into  the  public  eye  through 
his  connection  with  the  treaty  between  the  United 
States  Government  and  King  Menelik  of  Abyssinia. 
Ellis  was  accused  in  1901  by  a  young  woman  of  ap- 
parently excellent  antecedents  and  character  of  a 
serious  crime.  Prior  to  his  indictment  a  colored  man 
employed  in  his  office  (the  alleged  scene  of  the  crime) 
disappeared.  When  the  case  was  moved  for  trial, 
Ellis,  through  his  attorneys,  moved  for  a  commission 
to  take  the  testimony  of  this  absent,  but  clearly  ma- 
terial, witness  in  one  of  the  remote  States  of  Mexico 
— a  proceeding  which  would  require  a  journey  of 
some  two  weeks  on  muleback,  beyond  the  railway 
terminus.  The  district  attorney,  in  view  of  the  pecu- 
liarly opportune  disappearance  of  this  person  from 
the  jurisdiction,  strenuously  opposed  the  application 
and  hinted  at  collusion  between  Ellis  and  the  wit- 
ness. The  application,  however,  was  granted,  and 
a  delay  of  over  a  month  ensued.    During  that  time 


316         THE  PEISONER  AT  THE  BAR 

evidence  was  procured  by  the  counsel  of  the  prisoner 
showing  conclusively  that  the  complaining  witness 
was  inentally  unsound  and  had  made  similar  and 
groundless  charges  against  others.  The  indictment 
was  at  once  dismissed. 

But  such  delays  are  not  always  so  righteously 
employed.  There  is  a  story  told  of  a  case  where  a 
notori^as  character  was  charged  with  the  unusual 
crime  of  *' mayhem'^ — biting  off  another  man's 
finger.  The  defendant's  counsel  secured  adjourn- 
ment after  adjournment — no  one  knew  why.  At 
last  the  case  was  moved  for  trial  and  the  prosecu- 
tion put  in  its  evidence,  clearly  showing  the  guilt  of 
the  prisoner.  At  the  conclusion  of  the  People's  tes- 
timony, the  lawyer  for  the  defendant  arose  and 
harshly  stigmatized  the  story  of  the  complainant  as 
a  **pack  of  lies." 

**I  will  prove  to  you  in  a  moment,  gentlemen," 
exclaimed  he  to  the  jury,  *'how  absurd  is  this  charge 
against  my  innocent  client.    Take  the  stand!" 

The  prisoner  arose  and  walked  to  the  witness- 
chair. 

'  *  Open  your  mouth ! ' '  shouted  the  lawyer. 

The  defendant  did  so.  He  had  not  a  tooth  in  his 
hes^d.  The  delay  had  been  advantageously  employed. 

The  importance  of  mere  delay  to  a  guilty  defend- 
ant cannot  well  be  overestimated.  **You  never  can 
tell  what  may  happen  to  knock  a  case  on  the  head." 
For  this  reason  a  sufficiently  paid  and  properly 
equipped  counsel  will  run  the  whole  gamut  of  crim- 
inal procedure,  and — 

1.  Demur  to  the  indictment. 

2.  Move  for  an  inspection  of  the  minutes  of  the 
proceedings  before  the  grand  jury. 


TEICKS   OF   THE   TRADE  317 

3.  Move  to  dismiss  the  indictment  for  lack  of  suf- 
ficient evidence  before  that  body. 

4.  Move  for  a  commission  to  take  testimony. 

5.  Move  for  a  change  of  venue. 

6.  Secure,  where  possible,  a  writ  of  habeas  corpus 
and  a  stay  of  proceedings  from  some  federal  judge 
on  the  ground  that  his  client  is  confined  without  due 
process  of  law. 

All  these  steps  he  will  take  seriatim,  and  some 
cases  have  been  delayed  for  as  much  as  two  years  by 
merely  invoking  ^  legitimate ' '  legal  processes.  In 
point  of  fact  it  is  quite  possible  for  any  defendant 
absolutely  to  prevent  an  immediate  trial  provided 
he  has  the  services  of  vigilant  counsel,  for  these  are 
not  the  only  proceedings  of  which  he  can  avail 
himself. 

A  totally  distinct  method  is  for  the  defendant  to 
secure  bail,  and,  after  securing  as  many  adjourn- 
ments as  possible,  simply  flee  the  jurisdiction.  He 
will  then  remain  away  until  the  case  is  hopelessly 
stale,  or  he  no  longer  fears  prosecution. 

In  default  of  all  else  he  may  go  ** insane"  just 
before  the  case  is  moved  for  trial.  This  habit  of  the 
criminal  rich  when  brought  to  book  for  their  mis- 
deeds is  too  well  known  to  require  comment.  All 
that  is  necessary  is  for  a  sufficient  number  of  **  ex- 
pert'' alienists  to  declare  it  to  be  their  opinion  that 
the  defendant  is  mentally  incapable  of  understand- 
ing the  proceedings  against  him  or  of  preparing  his 
defence,  and  he  is  shifted  off  to  a  ** sanitarium'* 
until  some  new  sensation  occupies  the  public  mind 
and  his  offences  are  partially  forgotten. 

In  this  way  justice  is  often  thwarted  and  the  law 
cheated  of  its  victim,  but  unless  fortune  favors  him. 


318         THE  PEISONER  AT  THE  BAR 

sooner  or  later  the  indicted  man  must  return  for 
trial  and  submit  the  charge  against  him  to  a  jury. 
But  if  this  happens,  even  if  he  be  guilty,  all  hope 
need  not  be  lost.  There  are  still  *^  tricks  of  the 
trade ' '  which  may  save  him  from  the  clutches  of  the 
law. 

AT   THE   TEIAL 

What  can  be  done  when  at  last  the  prisoner 
who  has  fought  persistently  for  adjournment  has 
been  forced  to  face  the  witnesses  against  him  and 
submit  the  evidence  to  a  jury  of  peers?  Let  us  as- 
sume further  that  he  has  been  **out  on  bail,''  with 
plenty  of  opportunity  to  prepare  his  defence  and  lay 
his  plans  for  escape. 

When  the  case  is  finally  called  and  the  defendant 
takes  his  seat  at  the  bar  after  a  lapse  of  anywhere 
from  six  months  to  a  year  or  more  after  his  arrest, 
the  first  question  for  the  district  attorney  to  in- 
vestigate is  whether  or  no  the  person  presenting 
himself  for  trial  be  in  point  of  fact  the  individual 
mentioned  in  the  indictment.  This  is  often  a  diffi- 
cult matter  to  determine.  *  *  Ringers ' ' — particularly 
in  the  magistrates'  courts — are  by  no  means  un- 
known. Sometimes  they  appear  even  in  the  higher 
courts.  If  the  defendant  be  an  ex-convict  or  a 
well-known  crook,  his  photograph  and  measure- 
ments will  speedily  remove  all  doubt  upon  the 
subject,  but  if  he  be  a  foreigner  (particularly  a 
Pole,  Italian  or  a  Chinaman),  or  even  merely 
one  of  the  homogeneous  inhabitants  of  the  densely- 
populated  East  Side  of  New  York,  it  is  sometimes  a 
puzzling  problem.  **Mock  Duck,"  the  celebrated 
Highbinder  of  Chinatown,  who  was  set  free  after  two 
lengthy  trials  for  murder,  was  charged  not  long  ago 


TEICKS   OF   THE   TRADE  319 

with  a  second  assassination.  He  was  pointed  out  to 
the  police  by  various  Chinamen,  arrested  and 
brought  into  the  Criminal  Courts  building  for  iden- 
tification, but  for  a  long  time  it  was  a  matter  of 
uncertainty  whether  friends  of  his  (masquerading 
as  enemies)  had  not  surrendered  a  substitute.  Luck- 
ily the  assistant  district  attorney  who  had  prose- 
cuted this  wily  and  dangerous  Celestial  in  the  first 
instance  was  able  to  identify  him. 

Many  years  ago,  during  the  days  of  Fernando 
Wood,  a  connection  of  his  was  reputed  to  be  the 
power  behind  the  ** policy''  business  in  New  York 
City — the  predecessor  of  the  notorious  Al  Adams. 
A  *^ runner''  belonging  to  the  system  having  been 
arrested  and  policy  slips  having  been  found  in 
his  possession,  the  reigning  Policy  King  retained 
a  lawyer  of  eminent  respectability  to  see  what 
could  be  done  about  it.  The  defendant  was  a 
particularly  valuable  man  in  the  business  and  one 
for  whom  his  employer  desired  to  do  everything  in 
his  power.  The  lawyer  advised  the  defendant  to 
plead  guilty,  provided  the  judge  could  be  induced  to 
let  him  off  with  a  fine,  which  the  Policy  King  agreed 
to  pay.  Accordingly,  the  lawyer  visited  the  judge 
in  his  chambers  and  the  latter  practically  promised 
to  inflict  only  a  fine  in  case  the  defendant,  whom  we 
will  call,  out  of  consideration  for  his  memory, 
** Johnny  Dough,"  should  plead  guilty.  Unfortu- 
nately for  this  very  satisfactory  arrangement,  the 
judge,  now  long  since  deceased,  was  afflicted  with 
a  serious  mental  trouble  which  occasionally  mani- 
fested itself  in  peculiar  losses  of  memory.  When 
** Johnny  Dough,"  the  Policy  King's  favorite,  was 
arraigned  at  the  bar  and,  in  answer  to  the  clerk's 


320         THE  PEISONER  AT  THE  BAR 

interrogation,  stated  that  he  withdrew  his  plea  of 
*^not  guilty ''  and  now  stood  ready  to  plead  ^ '  guilty, ' ' 
the  judge,  to  the  surprise  and  consternation  of  the 
lawyer,  the  defendant,  and  the  latter  ^s  assembled 
friends,  turned  upon  him  and  exclaimed : 

''Ha!  So  you  plead  guilty,  do  you!  Well,  I  sen- 
tence you  to  the  penitentiary  for  one  year,  you  miser- 
able scoundrel  I'' 

Utterly  overwhelmed,  ''Johnny  Dough"  was  led 
away,  while  his  lawyer  and  relatives  retired  to  the 
corridor  to  express  their  opinion  of  the  court.  About 
three  months  later  the  lawyer,  who  had  heard  noth- 
ing further  concerning  the  case,  happened  to  be  in 
the  office  of  the  district  attorney,  when  the  latter 
looked  up  with  a  smile  and  inquired: 

"Well,  how's  your  client — Mr.  Dough T' 

"Safe  on  the  Island,  I  suppose,''  replied  the 
lawyer. 

"Not  a  bit  of  it,"  returned  the  district  attorney. 
* '  He  never  went  there. ' ' 

"What  do  you  mean!"  inquired  the  lawyer.  "I 
heard  him  sentenced  to  a  year  myself ! ' ' 

"I  can't  help  that,"  said  the  district  attorney. 
"The  other  day  a  workingman  went  down  to  the 
Island  to  see  his  old  friend  'Johnny  Dough.'  There 
was  only  one  'Johnny  Dough'  on  the  lists,  but  when 
he  was  produced  the  visitor  exclaimed : '  That  Johnny 
Dough!  That  ain't  him  at  all,  at  all!'  The  visitor 
departed  in  disgust.  We  instituted  an  investigation 
and  found  that  the  man  at  the  Island  was  a 
*  ringer.'  " 

' '  You  don 't  say ! ' '  cried  the  lawyer. 

"Yes,"  continued  the  district  attorney.  "But 
that  is  not  the  best  part  of  it.    You  see,  the  *  ringer' 


TRICKS   OF   THE   TRADE  321 

says  lie  was  to  get  two  hundred  dollars  per  month 
for  each  month  of  Dough's  sentence  which  he  served. 
The  prison  authorities  have  refused  to  keep  him  any 
longer,  and  now  he  is  suing  them  for  damages,  and 
is  trying  to  get  a  writ  of  mandamus  to  compel  them 
to  take  him  back  and  let  him  serve  out  the  rest  of  the 
sentence ! '  * 

Probably  the  most  successful  instance  on  record 
of  making  use  of  a  dummy  occurred  in  the  early 
stages  of  the  now  famous  Morse-Dodge  divorce 
tangle.  Dodge  had  been  the  first  husband  of  Mrs. 
Morse,  and  from  him  she  had  secured  a  divorce.  A 
proceeding  to  effect  the  annulment  of  her  second 
marriage  had  been  begun  on  the  ground  that  Dodge 
had  never  been  legally  served  with  the  papers  in 
the  original  divorce  case — in  other  words,  to  estab- 
lish the  fact  that  she  was  still,  in  spite  of  her  mar- 
riage to  Morse,  the  wife  of  Dodge.  Dodge  appeared 
in  New  York  and  swore  that  he  had  never  been 
served  with  any  papers.  A  well-known  and  reputa- 
ble lawyer,  on  the  other  hand,  Mr.  Sweetser,  was 
prepared  to  swear  that  he  had  served  them  person- 
ally upon  Dodge  himself.  The  matter  was  sent  by 
the  court  to  a  referee.  At  the  hour  set  for  the  hear- 
ing in  the  referee's  office,  Messrs.  Hummel  and 
Steinhardt  arrived  early,  in  company  with  a  third 
person,  and  took  their  seats  with  their  backs  to  a 
window  on  one  side  of  the  table,  at  the  head  of 
which  sat  the  referee,  and  opposite  ex-Judge  Furs- 
man,  attorney  for  Mrs.  Morse.  Mr.  Sweetser  was 
late.  Presently  he  appeared,  entered  the  office  hur- 
riedly, bowed  to  the  referee,  apologized  for  being 
tardy,  greeted  Messrs.  Steinhardt  and  Hummel,  and 
then,  turning  to  their  companion,  exclaimed:  **How 


322         THE   PEISONER   AT   THE   BAR 

do  you  do,  Mr.  Dodge!''  It  was  not  Dodge  at  all, 
but  an  acquaintance  of  one  of  Howe  &  Hummel's 
office  force  who  had  been  asked  to  accommodate 
them.  Nothing  had  been  said,  no  representations 
had  been  made,  and  Sweetser  had  voluntarily- 
walked  into  a  trap. 

The  attempt  to  induce  witnesses  to  identify  **  dum- 
mies ' '  is  frequently  made  by  both  sides  in  criminal 
cases,  and  under  certain  circumstances  is  generally 
regarded  as  professional.  Of  course,  in  such  in- 
stances no  false  suggestions  are  made,  the  witness 
himself  being  relied  upon  to  **drop  the  fall.''  In  case 
he  does  identify  the  wrong  person,  he  has,  of  course, 
invalidated  his  entire  testimony. 

Not  in  one  case  out  of  five  hundred,  however,  is 
any  attempt  made  to  substitute  a  ** dummy''  for  the 
real  defendant,  the  reason  being,  presumably,  the 
prejudice  innocent  people  have  against  going  to 
prison  even  for  a  large  reward.  The  question  re- 
solves itself,  therefore,  into  how  to  get  the  client  off 
when  he  is  actually  on  trial.  First,  how  can  the  sym- 
pathies of  the  jury  be  enlisted  at  the  very  start! 
Weeping  wives  and  wailing  infants  are  a  drug  on 
the  market.  It  is  a  friendless  man  indeed,  even  if  he 
be  a  bachelor,  who  cannot  procure  for  the  purposes 
of  his  trial  the  services  of  a  temporary  wife  and 
miscellaneous  collection  of  children.  Not  that  he 
need  swear  that  they  are  his !  They  are  merely  lined 
up  along  a  bench  well  to  the  front  of  the  court-room 
— the  imagination  of  the  juryman  does  the  rest 

A  defendant's  counsel  always  endeavors  to  im- 
press the  jury  with  the  idea  that  all  he  wants  is  a 
fair,  open  trial — and  that  he  has  nothing  in  the  world 
to  conceal.    This  usually  takes  the  form  of  a  loud 


TRICKS   OF   THE   TRADE  323 

announcement  that  he  is  willing  **to  take  the  first 
twelve  men  who  enter  the  box."  Inasmuch  as  the 
defence  needs  only  to  secure  the  vote  of  one  juryman 
to  procure  a  disagreement,  this  offer  is  a  com- 
paratively safe  one  for  the  defendant  to  make, 
since  the  prosecutor,  who  must  secure  unanimity 
on  the  part  of  the  jury  (at  least  in  New  York 
State),  can  afford  to  take  no  chances  of  letting 
an  incompetent  or  otherwise  unfit  talesman  slip 
into  the  box.  Caution  requires  him  to  examine 
the  jury  in  every  important  case,  and  frequently  this 
ruse  on  the  part  of  the  defendant  makes  it  appear  as 
if  the  State  had  less  confidence  in  its  case  than  the 
defence.  This  trick  was  invariably  used  by  the  late 
William  F.  Howe  in  all  homicide  cases  where  he 
appeared  for  the  defence. 

The  next  step  is  to  slip  some  juryman  into  the  box 
who  is  likely  for  any  one  of  a  thousand  reasons  to 
lean  towards  the  defence — as,  for  example,  one  who 
is  of  the  same  religion,  nationality  or  even  name  as 
the  defendant.  The  writer  once  tried  a  case  where 
the  defendant  was  a  Hebrew  named  Bauman, 
charged  with  perjury.  Mr.  Abraham  Levy  was  the 
counsel  for  the  defendant.  Having  left  an  associate 
to  select  the  jury  the  writer  returned  to  the  court- 
room to  find  that  his  friend  had  chosen  for  foreman 
a  Hebrew  named  Abraham  Levy,  Needless  to  say, 
a  disagreement  of  the  jury  was  the  almost  inevita- 
ble result.  The  same  lawyer  not  many  years  ago 
defended  a  client  named  Abraham  Levy.  In  like 
manner  he  managed  to  get  an  Abraham  Levy  on  the 
jury,  and  on  that  occasion  succeeded  in  getting  his 
client  off  scot-free. 

No  method  is  too  far-fetched  to  be  made  use  of 


324         THE  PRISONER  AT  THE  BAR 

on  tlie  diance  of  ^* catching'^  some  stray  talesman. 
In  a  case  defended  by  Ambrose  Hal.  Purdy,  where 
the  deceased  had  been  wantonly  stabbed  to  death  by 
a  blood-thirsty  Italian  shortly  after  the  assassina- 
tion of  President  McKinley,  the  defence  was  inter- 
posed that  a  quarrel  had  arisen  between  the  two  men 
owing  to  the  fact  that  the  deceased  had  loudly  pro- 
claimed anarchistic  doctrines  and  openly  gloried  in 
the  death  of  the  President,  that  the  defendant  had 
expostulated  with  him,  whereupon  the  deceased  had 
violently  attacked  the  prisoner,  who  had  killed  him 
in  self-defence. 

The  whole  thing  was  so  thin  as  to  deceive  nobody, 
but  Mr.  Purdy,  as  each  talesman  took  the  witness- 
chair  to  be  examined  on  the  voir  dire,  solemnly  asked 
each  one : 

**  Pardon  me  for  asking  such  a  question  at  this 
time — it  is  only  my  duty  to  my  unfortunate  client 
that  impels  me  to  it — ^but  have  you  any  sympathy 
with  anarchy  or  with  assassination?'' 

The  talesman,  of  course,  inevitably  replied  in  the 
negative. 

*^ Thank  you,  sir,''  Purdy  would  continue.  **In 
that  event  you  are  entirely  acceptable!" 

Not  long  ago  two  shrewd  Irish  attorneys  were  en- 
gaged in  defending  a  client  charged  with  an  atrocious 
murder.  The  defendant  had  the  most  Hebraic  cast  of 
countenance  imaginable,  and  a  beard  that  reached  to 
his  waist.  Practically  the  only  question  which  these 
lawyers  put  to  the  different  talesmen  during  the  se- 
lection of  the  jury  was,  **Have  you  any  prejudice 
against  the  defendant  on  account  of  his  race?''  In 
due  course  they  succeeded  in  getting  several  Hebrews 
upon  the  jury  who  managed  in  the  jury-room  to  argue 


TRICKS   OF   THE    TRADE  325 

the  verdict  down  from  murder  to  manslaughter  in  the 
second  degree.  As  the  defendant  was  being  taken 
across  the  bridge  to  the  Tombs  he  fell  on  his  knees 
and  offered  up  a  heartfelt  prayer  such  as  could  only 
have  emanated  from  the  lips  of  a  devout  Roman 
Catholic. 

Lawyers  frequently  secure  the  good-will  of  jurors 
(which  may  last  throughout  the  trial  and  show  itself 
in  the  verdict)  by  some  happy  remark  during  the 
early  stages  of  the  case.  During  the  Clancy  murder 
trial  each  side  exhausted  its  thirty  peremptory  chal- 
lenges and  also  the  entire  panel  of  jurors  in  filling 
the  box.  At  this  stage  of  the  ease  the  foreman  be- 
came ill  and  had  to  be  excused.  No  jurors  were  left 
except  one  who  had  been  excused  by  mutual  consent 
for  some  trifling  reason,  and  who  out  of  curiosity 
had  remained  in  court.  He  rejoiced  in  the  name  of 
Stone.  Both  sides  then  agreed  to  accept  him  as 
foreman  provided  he  was  still  willing  to  serve,  and 
this  proving  to  be  the  case  he  triumphantly  made  his 
way  towards  the  box.  As  he  did  so,  the  defendant 's 
counsel  remarked:  **The  Stone  which  the  builders 
refused  is  become  the  head  Stone  of  the  corner." 
The  good-will  generated  by  this  meagre  jest  stood 
him  later  in  excellent  stead. 

In  default  of  any  other  defence,  some  criminal 
attorneys  have  been  known  to  seek  to  excite 
sympathy  for  their  helpless  clients  by  appearing  in 
court  so  intoxicated  as  to  be  manifestly  unable  to 
take  care  of  the  defendant's  interests,  and  prisoners 
have  frequently  been  acquitted  simply  by  virtue  of 
their  lawyer's  obvious  incapacity.  The  attitude  of 
the  jury  in  such  cases  seems  to  be  that  the  defendant 
has  not  had  a  **fair  show"  and  so  should  be  ac- 


326         THE  PEISONER  AT  THE  BAE 

quitted  anyway.  Of  course,  this  appeals  to  the  jury- 
man 's  sympathies  and  he  overlooks  the  fact  that  by 
his  action  the  prosecution  is  given  no  ^^show'*  at  all. 

Generally  speaking,  the  advice  credited  to  Mr. 
Lincoln,  as  being  given  by  him  to  a  young  attorney 
who  was  about  to  defend  a  presumably  guilty  client, 
is  religiously  followed  by  all  criminal  practitioners : 

**Well,  my  boy,  if  youVe  got  a  good  case,  stick  to 
the  evidence;  if  youVe  got  a  weak  one,  go  for  the 
People ^s  witnesses;  but — if  you've  got  no  case  at 
all,  hammer  the  district  attorney  f 

As  a  rule,  however,  criminal  lawyers  are  not  in  a 
position  to  *^ hammer''  the  prosecuting  officer,  but 
endeavor  instead  to  suggest  by  innuendo  or  even 
open  declaration  his  bias  and  unfairness. 

^*Be    fair,    Mr.    !"    is    the    continual    cry. 

*'Try  tobe/aif.''' 

The  defendant,  whether  he  be  an  ex-convict  or 
thirty-year-old  professional  thief,  is  always  *Hhis 
poor  boy,"  and,  as  he  is  not  compelled  by  law  to 
testify,  and  as  his  failure  to  do  so  must  not  be 
weighed  against  him  by  the  jury,  he  frequently 
walks  out  of  court  a  free  man,  because  the  jury  be- 
lieve from  the  lawyer's  remarks  that  he  is  in  fact 
a  mere  youthful  offender  of  hitherto  good  reputa- 
tion and  deserves  another  chance. 

By  all  odds  the  greatest  abuse  in  criminal  trials 
lies  in  the  open  disregard  of  professional  ethics  on 
the  part  of  lawyers  who  deliberately  supply  of  them- 
selves, in  their  opening  and  closing  addresses  to  the 
jury,  what  incompetent  bits  of  evidence,  true  or 
false,  they  have  not  been  able  to  establish  by  their 
witnesses.  There  is  no  complete  cure  for  this,  for 
even  if  the  judge  rebukes  the  lawyer  and  directs  the 


TRICKS   OF   THE   TRADE  327 

jury  to  disregard  what  he  has  said  as  ^^not  being  in 
the  evidence,  ^  ^  the  damage  has  been  done,  the  state- 
ment still  lingering  in  the  jury's  mind  without  any 
opportunity  on  the  part  of  the  prosecutor  to  dis- 
prove it.  There  is  no  antidote  for  such  jury- 
poison.  A  shyster  lawyer  need  but  to  keep  his  client 
off  the  stand  and  he  can  saturate  the  jury's  mind 
with  any  facts  concerning  the  defendant's  respecta- 
bility and  history  which  his  imagination  is  powerful 
enough  to  supply.  On  such  occasions  an  ex-convict 
with  no  relatives  may  become  a  **  noble  fellow,  who, 
rather  than  have  his  family  name  tainted  by  being 
connected  with  a  criminal  trial,  is  willing  to  risk 
even  conviction" — ^'a  veteran  of  the  glorious  war 
which  knocked  the  shackles  from  the  slave" — '*the 
father  of  nine  children" — *'a  man  hounded  by  the 
police."  The  district  attorney  may  shout  him- 
self hoarse,  the  judge  may  pound  his  gavel  in 
righteous  indignation,  the  lawyer  may  apologize  be- 
cause in  the  zeal  with  which  he  feels  inspired  for  his 
client's  cause  he  perhaps  (which  only  makes  mat- 
ters worse)  has  overstepped  the  mark — ^but  some 
juryman  may  suppose  that,  after  all,  the  prisoner  is 
a  hero  or  nine  times  a  father. 

There  is  one  notorious  attorney  who  poses  as  a 
philanthropist  and  who  invariably  promises  the  jury 
that  if  they  acquit  his  client  he  will  personally  give 
him  employment.  If  he  has  kept  half  of  his  prom- 
ises he  must  by  this  time  have  several  hundred 
clerks,  gardeners,  coachmen,  choremen  and  valets. 

In  like  manner  attorneys  of  this  feather  will  de- 
liberately state  to  the  jury  that  if  the  defendant  had 
taken  the  stand  he  would  have  testified  thus  and  so ; 
or  that  if  certain  witnesses  who  have  not  appeared 


328         THE  PEISONEE  AT  THE  BAE 

(and  who  perhaps  in  reality  do  not  exist  at  all)  had 
testified  they  would  have  established  various  facts. 
Such  lawyers  should  be  locked  up  or  disbarred; 
courts  are  powerless  to  negative  entirely  their  dis- 
honesty in  individual  cases. 

Clever  counsel,  of  course,  habitually  make  use  of 
all  sorts  of  appeals  to  sympathy  and  prejudice.  In 
one  case  in  New  York  in  which  James  W.  Osborne 
appeared  as  prosecutor  the  defendant  wore  a  G.  A. 
E.  button.  His  lawyer  managed  to  get  a  veteran 
on  the  jury.  Mr.  Osborne  is  a  native  of  North  Caro- 
lina. The  defendant  ^s  counsel,  to  use  his  own  words, 
'  *  worked  the  war  for  all  it  was  worth, ' '  and  the  de- 
fendant lived,  bled  and  died  for  his  country  over 
and  over  again.  In  summing  up  the  case,  the  attor- 
ney addressed  himself  particularly  to  the  veteran 
on  the  back  row,  and,  after  referring  to  numerous 
imaginary  engagements,  exclaimed:  **Why,  gentle- 
men, my  client  was  pouring  out  his  life  blood  upon 
the  field  of  battle  when  the  ancestors  of  Mr.  Osborne 
were  raising  their  hands  against  the  flag!''  For 
once  Mr.  Osborne  had  no  adequate  words  to  reply. 

By  far  the  most  effective  and  dangerous  *Hrick'' 
employed  by  guilty  defendants  is  the  deliberate 
shouldering  of  the  entire  blame  by  one  of  two  per- 
sons who  are  indicted  together  for  a  single  offence. 
A  common  example  of  this  is  where  two  men  are 
caught  at  the  same  time  bearing  away  between  them 
the  spoil  of  their  crime  and  are  jointly  indicted  for 
**  criminally  receiving  stolen  property."  Both, 
probably,  are  **side  partners,"  equally  guilty,  and 
have  burglarized  some  house  or  store  in  each  other's 
company.  They  may  be  old  pals  and  often  have 
served  time  together.    They  agree  to  demand  sepa- 


TRICKS    OF    THE    TRADE  329 

rate  trials,  and  that  whoever  is  convicted  first  shall 
assume  the  entire  responsibility.  Accordingly,  A. 
is  tried  and,  in  spite  of  his  asseveration  that  he  is 
innocent  and  that  the  *^stutf  was  given  him  by  a 
strange  man,  who  paid  him  a  dollar  to  transport  it 
to  a  certain  place,  is  properly  convicted.*  The  bar- 
gain holds.  B.'s  case  is  moved  for  trial  and  he 
claims  never  to  have  seen  A.  in  his  life  before  the 
night  in  question,  and  that  he  volunteered  to  help 

♦The  defence  that  the  accused   innocently   received   the   stolen 

Eroperty  into  his  possession  was  a  familiar  one  even  in  1697,  as  appears 
y  the  following  record  taken  from  the  Minutes  of  the  Sessions.     It 
would  seem  that  it  was  even  then  received  with  some  incredulity. 


CITY  &  COUNTY  OF  NEW  YORK:  ss: 

Att  a  Meeting  of  the  Justices  of  the  Peace  for  the  said  City  &  County 
att  the  City  Hall  of  the  said  City  on  Thursday  the  10th  day  of  June 
Anno  Dom  1697. 

PRESENT. 

William  Morrott  }  Esquires 

James  Graham  f         quorum 

Jacobus  Cortlandt  )      Esquires 

Grandt  Schujrlor  >-         Justices 

Leonard  Lowie  )      of  the  Peace 

Jacobus  Cortlandt,  Esq.,  one  of  his  Majestys  Justices  of  the  peace 
for  ye  said  City  and  County  Informed  the  Kings  Justices  that  a  peace 
of  Linnen  Ticking  was  taken  out  of  his  Shop  this  Morning.  That  he 
was  informed  a  Negro  Slave  Named  Joe  was  seen  to  take  the  same 
whereupon  the  said  Jacobus  Van  Cortlandt  Pursued  the  said  Joe  and 
'  apprehended  him  and  found  the  said  peice  of  ticking  in  his  custody 
and  had  the  said  Negro  Joe  penned  in  the  cage,  upon  which  the  said 
Negro  man  being  brought  before  the  said  Justices  said  he  did  not  take 
the  said  ticking  out  of  the  Shop  window  but  that  a  Boy  gave  itt  to 
him,  but  upon  Examination  of  Sundry  other  Evidence  itt  Manifestly 
Appeareth  to  the  said  Justices  that  the  said  Negro  man  Named  Joe, 
did  steal  the  said  piece  of  linnen  ticking  out  of  the  Shop  Window  of 
the  said  Jacobus  Van  Cortlandt  and  thereupon  doe  order  the  punish- 
ment of  the  said  Negro  as  follows  vigt.  That  the  said  Negro  man  Slave 
Named  Joe  shall  be  forthwith  by  the  Common  whipper  of  the  City  or 
some  of  the  Sheriffs  officers  att  the  Cage  be  stripped  Naked  from  the 
Middle  upwards  and  then  and  there  shall  be  tyed  to  the  tayle  of  a  Cart 
and  being  soe  stripped  and  tyed  shall  be  Drove  Round  the  Citv  and 
Receive  upon  his  naked  body  att  the  Comer  of  each  Street  nine  lashes 
until  he  return  to  the  place  from  whence  he  sett  out  and  that  he  after- 
wards Stand  Committed  to  the  Sheriffs  custody  till  he  pay  his  fees. 


330         THE  PRISONER  AT  THE  BAR 

the  latter  carry  a  bundle  whicli  seemed  to  be  too 
heavy  for  him.  He  calls  A.,  who  testifies  that  this 
is  so— -that  B.,  whom  he  did  not  know  from  Adam, 
tendered  his  services  and  that  he  availed  himself 
of  the  offer.  The  jury  are  usually  prone  to  acquit, 
as  the  weight  of  evidence  is  clearly  with  the  de- 
fendant. 

Many  changes  are  rung  upon  this  device.  There 
is  said  to  have  been  a  case  in  which  the  defendant 
was  convicted  of  murder  in  the  first  degree  and  sen- 
tenced to  be  executed.  It  was  one  of  circumstantial 
evidence  and  the  verdict  was  the  result  of  hours  of 
deliberation  on  the  part  of  the  jury.  The  prisoner 
had  stoutly  denied  knowing  anything  of  the  homi- 
cide. Shortly  before  the  date  set  for  the  execution, 
another  man  turned  up  who  admitted  that  he  had 
committed  the  crime  and  made  the  fullest  sort  of  a 
confession.  A  new  trial  was  thereupon  granted  by 
the  Appellate  Court,  and  the  convict,  on  the  applica- 
tion of  the  prosecuting  attorney,  was  discharged  and 
quickly  made  himself  scarce.  It  then  developed  that 
apart  from  the  prisoner's  own  confession  there  was 
practically  nothing  to  connect  him  with  the  crime. 
Under  a  statute  making  such  evidence  obligatory 
in  order  to  render  a  confession  sufficient  for  a  con- 
viction, the  prisoner  had  to  be  discharged. 

In  the  case  of  Mabel  Parker,  a  young  woman  of 
twenty,  charged  with  the  forgery  of  a  large  number 
of  checks,  many  of  them  for  substantial  amounts,  her 
husband  made  an  almost  successful  attempt  to  pro- 
cure her  acquittal  by  means  of  a  new  variation  of 
the  old  game.  Mrs.  Parker,  after  her  husband  had 
been  arrested  for  passing  one  of  the  bogus  checks, 
had  been  duped  by  a  detective  into  believing  that  the 


TKICKS   OF   THE   TRADE  331 

latter  was  a  fellow  criminal  who  was  interested  in 
securing  Parker's  release.  In  due  course  she  took 
this  supposed  friend  into  her  confidence,  made  a 
complete  confession,  and  illustrated  her  skill  by  im- 
promptu copies  of  her  forgeries  from  memory  upon 
a  sheet  of  pad  paper.  This  the  detective  secured 
and  then  arrested  her.  She  was  indicted  for  forg- 
ing the  name  Alice  Kauser  to  a  check  upon  the  Lin- 
coln National  Bank.  On  her  trial  she  denied  having 
done  so,  and  claimed  that  the  detective  had  found 
the  sheet  containing  her  supposed  handwriting  in 
her  husband's  desk,  and  that  she  had  written  none 
of  the  alleged  copies  upon  it.  The  door  of  the  court- 
room then  opened,  and  James  Parker  was  led  to  the 
bar  and  pleaded  guilty  to  the  forgery  of  the  check 
in  question.  (For  the  benefit  of  the  layman  it 
should  be  explained  that  as  a  rule  indictments  for 
forgery  also  contain  a  count  for  ** uttering.")  He 
then  took  the  stand,  admitted  that  he  had  not  only 
uttered  but  had  also  written  the  check,  and  swore 
that  it  was  his  handwriting  which  appeared  on  the 
pad. 

The  prosecutor  was  nonplussed.  If  he  should  ask 
the  witness  to  prove  his  capacity  to  forge  such  a 
check  from  memory  on  the  witness-stand,  the  latter, 
as  he  had  had  ample  time  to  practise  the  signature 
while  in  prison,  would  probably  succeed  in  doing  so. 
If,  on  the  other  hand,  he  should  not  ask  him  to  write 
the  name,  the  defendant's  counsel  would  argue  to  the 
jury  that  he  was  afraid  to  do  so.  The  district  attor- 
ney therefore  took  the  bull  by  the  horns  and  chal- 
lenged Parker  to  make  from  memory  a  copy  of  the 
signature,  and,  much  as  he  had  suspected,  the  wit- 
ness produced  a  very  good  one.  An  acquittal  seemed 


332         THE  PRISONER  AT  THE  BAR 

certain,  and  the  prosecutor  was  at  his  wit's  end  to 
devise  a  means  to  meet  this  practical  demonstration 
that  the  husband  was  in  fact  the  forger.  At  last  it 
was  suggested  to  him  that  it  would  be  comparatively 
easy  to  memorize  such  a  signature,  and  acting  on  this 
hint  he  found  that  after  half  an  hour's  practice  he 
was  able  to  make  almost  as  good  a  forgery  as  Parker. 
When  therefore  it  came  time  for  him  to  address  the 
jury  he  pointed  out  the  fact  that  Parker's  perform- 
ance on  the  witness-stand  really  established  nothing 
at  all — that  any  one  could  forge  such  a  signature 
from  memory  after  but  a  few  minutes'  practice. 

**To  prove  to  you  how  easily  this  can  be  done," 
said  he,  *^I  will  volunteer  to  write  a  better  Kauser 
signature  than  Parker  did." 

He  thereupon  seized  a  pen  and  began  to  demon- 
strate his  ability  to  do  so.  Mrs.  Parker,  seeing  the 
force  of  this  ocular  demonstration,  grasped  her 
counsel's  arm  and  cried  out:  ^'For  God's  sake, 
don't  let  him  do  it!"  The  lawyer  objected,  the  ob- 
jection was  sustained,  but  the  case  was  saved.  Why, 
the  jury  argued,  should  the  lawyer  object  unless  the 
making  of  such  a  forgery  were  in  fact  an  easy 
matter? 

In  desperate  cases,  desperate  men  will  take  des- 
perate chances.  The  traditional  instance  where  the 
lawyer,  defending  a  client  charged  with  causing  the 
death  of  another  by  administering  poisoned  cake, 
met  the  evidence  of  the  prosecution's  experts  with 
the  remark:  *'TMs  is  my  answer  to  their  testi- 
mony!" and  calmly  ate  the  balance  of  the  cake,  is 
too  familiar  to  warrant  detailed  repetition.  The 
jury  retired  to  the  jury-room  and  the  lawyer  to  his 


TRICKS   OF   THE   TRADE  333 

office,  where  a  stomach  pump  quickly  put  him  out 
of  danger.  The  jury  is  supposed  to  have  acquitted. 
Such  are  some  of  the  tricks  of  the  legal  trade  as 
practised  in  its  criminal  branch.  Most  of  them  are 
unsuccessful  and  serve  only  to  relieve  the  gray 
monotony  of  the  courts.  When  they  achieve  their 
object  they  add  to  the  interest  of  the  profession  and 
teach  the  prosecutor  a  lesson  by  which,  perhaps,  he 
may  profit  in  the  future. 


CHAPTER   XVn 
WHAT  FOSTERS  CRIME 

To  lack  of  regard  for  law  is  mainly  due  the  ex- 
istence of  crime,  for  a  perfect  respect  for  law  would 
involve  entire  obedience  to  it.  Yet  crime  continues 
and  from  time  to  time  breaks  forth  to  such  an  extent 
as  to  give  ground  for  a  popular  impression  that  it  is 
increasing  out  of  proportion  to  our  growth  as  a 
nation.  Now,  while  it  may  be  fairly  questioned 
whether  there  is  any  actual  increase  of  crime  in  the 
United  States,  and  while,  on  the  contrary,  observa- 
tion would  seem  to  show  an  actual  decrease,  not  only 
in  crimes  of  violence,  but  in  all  major  crimes,  there 
nevertheless  exists  to-day  a  widespread  contempt 
for  the  criminal  law  which,  if  it  has  not  already  stim- 
ulated a  general  increase  of  criminal  activity,  is 
likely  to  do  so  in  the  future.  This  contempt  for  the 
law  is  founded  not  only  upon  actual  conditions,  but 
also  upon  belief  in  conditions  erroneously  supposed 
to  exist,  which  is  fostered  by  current  literature  and 
by  the  sensational  press. 

Thus,  as  has  already  been  pointed  out,  while  it  is 
popularly  believed  that  women  are  almost  never  con- 
victed of  crime,  and  particularly  of  homicide,  the 
fact  is,  at  least  in  New  York  County,  that  a  much 
greater  proportion  of  women  charged  with  murder 
are  convicted  than  of  men  charged  with  the  same 
offence.  To  read  the  newspapers  one  would  sup- 
pose that  the  mere  fact  that  the  defendant  was  a 

334 


WHAT   FOSTERS    CRIME  335 

female  instantly  paralyzed  the  minds  of  the  jury 
and  reduced  them  to  a  state  of  imbecility.  The  in- 
evitable result  of  this  must  be  to  encourage  lawless- 
ness among  the  lower  orders  of  women  and  to  lead 
them  to  look  upon  arrest  as  a  mere  formality  with- 
out ultimate  significance.  The  writer  recalls  trying 
for  murder  a  negress  who  had  shot  her  lover  not 
long  after  the  discharge  of  a  notorious  female  de- 
fendant in  a  recent  spectacular  trial  in  New  York. 
When  asked  why  she  had  killed  him  she  replied : 
**0h,  Nan  Patterson  did  it  and  got  off.'' 
This  is  not  offered  as  a  reflection  upon  the  failure 
of  the  jury  to  reach  a  verdict  in  the  Patterson  case, 
but  as  an  illuminating  illustration  of  the  concrete 
and  immediate  effect  of  all  actual  or  supposed  fail- 
ures of  justice. 

A  belief  that  the  course  of  criminal  justice  is  slow 
and  uncertain,  that  the  chances  are  all  in  favor  of 
the  defendant,  and  that  he  has  but  to  resort  to  tech- 
nicalities to  secure  not  only  indefinite  delay  but 
generally  ultimate  freedom,  breeds  an  indifference 
amounting  almost  to  arrogance  among  law-breakers, 
powerful  and  otherwise,  and  a  painful  yet  hopeless 
conviction  among  honest  men  that  nothing  can  pre- 
vent the  wicked  from  flourishing.  Honesty  seems 
no  longer  even  a  good  policy,  and  the  young  business 
man  resorts  to  sharp  practices  to  get  ahead  of  his 
unscrupulous  competitor.  In  some  localities  the  un- 
certainty and  delay  attendant  upon  the  execution  of 
the  law  is  the  alleged,  and  maybe  the  actual,  cause 
of  the  community  crime  of  lynching.  Even  where 
the  administration  of  justice  is  seen  at  its  best  many 
people  who  have  been  wronged  believe  that  there  is 
so  little  likelihood  that  the  offender  will  after  all  be 


336         THE  PRISONER  AT  THE  BAR 

punislied  that  the  cheapest  and  easiest  course  is  to 
let  the  matter  drop.  All  this  gives  aid  and  comfort 
to  the  powers  of  darkness. 

The  widespread  impression  as  to  the  uncertainty 
of  the  law  is  not  entirely  a  misapprehension.  **We 
have  long  since  passed  the  period  when  it  is  possi- 
ble to  punish  an  innocent  man.  We  are  now  strug- 
gling with  the  problem  whether  it  is  any  longer 
possible  to  punish  the  guilty.''  It  is  a  melancholy 
fact  that  at  the  present  time  *^  penal  statutes  and 
procedure  tend  more  to  defeat  and  retard  the  ends 
of  justice  than  to  protect  the  rights  of  the  accused. ' ' 

The  subject  of  criminal-law  reform  is  too  exten- 
sive to  be  discussed  here  even  superficially,  but  his- 
torically the  explanation  of  existing  conditions  is 
simple  enough.  The  present  overgrown  state  of  the 
criminal  law  is  the  direct  result  of  our  exaggerated 
regard  for  personal  liberty,  coupled  with  a  whole- 
sale adoption  of  the  technicalities  of  English  law 
invented  when  only  such  technicalities  could  stand 
between  the  minor  offender  and  the  barbarous  pun- 
ishments of  a  bygone  age.  We  forget  that  the  com- 
munity is  composed  of  individuals,  and  we  tend  to 
disregard  its  interests  for  those  of  any  particular 
individual  who  happens  to  be  a  prisoner  at  the  bar. 
We  revolted  from  England  and  incidentally  from 
her  system  of  administering  the  criminal  law,  by 
which  the  defendant  could  have  no  voice  at  his  own 
trial,  where  practically  every  crime  was  punishable 
with  death,  and  where  only  the  Crown  could  pro- 
duce and  examine  witnesses.  Every  one  will  have 
to  agree  that  the  English  system  was  very  harsh  and 
very  unfair  indeed.  To-day  it  is  better  than  ours, 
simply  because  its  errors  have  been  systematically 


WHAT   FOSTERS   CRIME  337 

and  wisely  corrected,  without  diminution  in  the  na- 
tional respect  for  law.  When  we  devised  our  own 
system  we  adopted  those  humane  expedients  for 
evading  the  law  which  were  only  justified  by  the 
existing  penalties  attached  to  convictions  for  crime, 
— and  then  discarded  the  penalties.  We  were 
through  with  tyrants  once  and  for  all.  The  Crown 
had  always  been  opposed  to  the  defendant  and  the 
Crown  was  a  tyrant.  We  naturally  turned  with 
sympathy  towards  the  prisoner. 

We  gave  him  the  right  of  appeal  on  all  matters 
of  law  through  all  the  courts  of  our  States,  and  even 
into  the  courts  of  the  United  States,  while  we  al- 
lowed the  People  no  right  of  appeal  at  all.  If  the 
prisoner  was  convicted  he  could  go  on  and  test  the 
case  all  along  the  line, — if  he  was  acquitted  the  Peo- 
ple had  to  rest  satisfied.  We  stopped  the  mouth  of 
the  judge  and  made  it  illegal  for  him  to  ^^sum 
up'*  the  case  or  discuss  the  facts  to  any  extent. 
We  clipped  the  wings  of  the  prosecutor  and  allowed 
him  less  latitude  of  expression  than  an  English 
judge.  Then  we  gazed  on  the  work  of  our  intellects 
and  said  it  was  good.  If  an  ignorant  jury  acquitted 
a  murderer  under  the  eyes  of  a  gagged  and  helpless 
judge,  we  said  that  it  was  all  right  and  that  it  was 
better  that  ninety-nine  guilty  men  should  escape  than 
that  one  innocent  man  should  be  convicted.  Yes, — 
better  for  whom?  If  another  murderer,  about  whose 
guilt  the  highest  court  in  one  of  the  States  said  there 
was  no  possible  doubt,  secured  three  new  trials  and 
was  finally  acquitted  on  the  fourth,  it  merely  demon- 
strated how  perfectly  we  safeguarded  the  rights  of 
the  individual. 

The  result  is  that  we  have  unnecessarily  fettered 


338         THE  PRISONER  AT  THE  BAR 

ourselves,  have  furnished  a  multitude  of  technical 
avenues  of  escape  to  wrong-doers,  and  have  created 
a  popular  contempt  for  courts  of  justice,  which 
shows  itself  in  the  sentimental  and  careless  verdicts 
of  juries,  in  a  lack  of  public  spirit,  and  in  an  indispo- 
sition to  prosecute  wrong-doers.  In  addition,  the 
impression  sought  to  be  conveyed  by  the  yellow 
press  that  our  judiciary  is  corrupt  and  that  money 
can  buy  anything — even  justice — leads  the  jury  in 
many  cases  to  feel  that  their  presence  is  merely  a 
formal  concession  to  an  archaic  procedure  and  that 
their  oaths  have  no  real  significance. 

The  community,  the  *' People, ''  have  a  sufficiently 
hard  task  to  secure  justice  at  any  criminal  trial. 
On  the  one  hand  is  the  abstract  proposition  that  the 
law  has  been  violated,  on  the  other  sits  a  human 
being,  ofttimes  contrite,  always  an  object  of  pity. 
He  is  presumed  innocent,  he  is  to  be  given  the  bene- 
fit of  every  reasonable  doubt.  He  has  the  right  to 
make  his  own  powerful  appeal  to  the  jury  and  to 
have  the  services  of  the  best  lawyer  he  can  secure 
to  sway  their  emotions  and  their  sympathies.  If 
the  prosecutor  resorts  to  eloquence  he  is  stigma- 
tized as  ^^over-zealous''  and  as  a  ^*persecutor»''  If 
a  plainly  guilty  defendant  be  acquitted,  not  the 
trampled  ideal  of  justice,  but  the  vision  of  a  liber- 
ated prisoner  rejoicing  in  his  freedom  hovers  in  the 
talesman's  dreams. 

So  far  so  good ;  we  can  afford  to  stand  by  a  system 
which  in  the  long  run  has  served  us  fairly  well.  But 
an  occasional  evil,  an  evil  which  when  it  occurs  is 
productive  of  great  harm  and  serves  to  give  color  to 
the  popular  opinion  of  criminal  law,  begins  only  when 
the  lawyers  have  had  their  opportunity  for  elocu- 


WHAT  FOSTERS  CRIME  339 

tion.  At  the  conclusion  of  the  charge  the  defendant's 
attorney  proceeds  to  put  the  judge  through  what  is 
familiarly  known  as  "  a  course  of  sprouts."  He 
makes  twenty  or  thirty  "  requests  to  charge  the  jury  " 
on  the  most  abstract  propositions  of  law  which  his 
fertile  mind  can  devise, — relevant  or  irrelevant,  ap- 
plicable or  inapplicable  to  the  facts, — and  the  judge 
is  compelled  to  decide  from  the  bench,  without  oppor- 
tunity for  reflection,  questions  which  the  attorney 
has  labored  upon,  perchance,  for  weeks.  If  he 
guesses  wrong,  the  lawyer  "  excepts  "  and  the  case 
may  be  reversed  on  appeal.  This  is  not  a  test  of  the 
defendant's  guilt  or  innocence,  but  a  test  of  the  ab- 
stract learning  and  quickness  of  the  presiding  judge. 

It  is  generally  believed  that  appellate  courts  are 
prone  to  reverse  criminal  cases  on  purely  technical 
grounds.  Whether  this  belief  be  well  founded  or  ill, 
its  wide  acceptance  as  fact  is  fertile  in  bringing  the 
law  into  disrepute.*  Justice  to  be  effective  must  be 
not  only  sure  but  swift.  An  "iron  hand"  cannot 
always  compensate  for  a  "  leaden  heel." 

It  is  probably  true  that  in  some  of  the  States  such 
a  tendency  exists  and  may  result  in  making  the  ad- 
ministration of  justice  a  laughing  stock,  but  it  is  far 
from  being  so  in  States  of  the  character  of  New  York 
and  Massachusetts.  The  Appellate  Division,  First 
Department,  and  Court  of  Appeals  in  New  York  are 
distinctly  opposed  to  reversing  criminal  cases  on 
technical  grounds  and  are  prone  to  disregard  trivial 
error  where  the  guilt  of  the  defendant  is  clear.    The 

*  Cf.  "Criminal  Law  Reform,"  G.  W.  Alp:er,  "The  Outlook,"  June, 
1907.  Also  article  having  same  title  in  "  Moral  Overstrain,"  by  same 
author.  See  also,  by  Hon.  C.  F.  Amidon,  "The  Quest  for  Error  and  the 
doing  of  Justice,"  40  American  Law  Rev.  681,  and  article  on  same  subject 
in  "The  Outlook  "  for  June,  1906. 


340  THE  PRISONER  AT  THE  BAR 

writer  can  recall  no  recent  criminal  case  where  the 
district  attorney's  office  has  felt  aggrieved  at  the  ac- 
tion of  the  higher  courts,  and  on  the  contrary  be- 
lieves that  their  action  is  generally  based  on  broad 
principles  of  public  policy  and  common-sense. 

During  the  year  1905  the  district  attorney  of  New 
York  County  defended  forty-seven  appeals  from  con- 
victions in  criminal  cases  in  the  Appellate  Division. 
Of  these  convictions  only  three  were  reversed.  He 
defended  eighteen  in  the  Court  of  Appeals,  of  which 
only  two  were  reversed.  One  of  the  writer's  associ- 
ates computed  that  he  had  secured,  during  a  four 
years'  term  of  office,  twenty-nine  convictions  in 
which  appeals  had  been  taken.  Of  these  but  two  were 
reversed,  one  of  them  immediately  resulting  in  the 
defendant's  re-conviction  for  the  same  crime.  The 
other  is  still  pending  and  the  defendant  awaiting  his 
trial.  Certainly  there  is  little  in  the  actual  figures 
to  give  color  to  the  impression  that  the  criminal 
profits  by  mere  technicalities  on  appeal, — at  least  in 
New  York  State. 

In  nine  cases  out  of  ten  the  reversal  of  a  convic- 
tion in  a  criminal  case  is  due  to  the  carelessness  or 
inefficiency  of  the  prosecuting  officer  or  trial  judge 
and  not  to  any  inadequacy  in  our  methods  of  proce- 
dure. Yet  the  tenth  case,  the  case  where  the  criminal 
does  beat  the  law  by  a  technicality,  does  more  harm 
than  can  easily  be  estimated.  That  is  the  one  case 
everybody  knows  about, — the  one  the  papers  descant 
upon,  the  one  that  cheers  the  heart  of  the  grafter  and 
every  criminal  who  can  afford  to  pay  a  lawyer. 

Yet  the  evil  influence  of  the  reversal  of  a  convic- 
tion on  appeal,  however  much  it  is  to  be  deprecated, 
is  as  nothing  compared  with  a  deliberate  acquittal  of 


WHAT  FOSTERS  CRIME  341 

a  guilty  defendant  by  a  reckless,  sentimental,  or  law- 
less jnry.  Few  can  appreciate  as  does  a  prosecutor 
the  actual,  practical  and  immediate  effect  of  such  a 
spectacle  upon  those  who  witness  it. 

Two  men  were  seen  to  enter  an  empty  dwelling- 
house  in  the  dead  of  night.  The  alarm  was  given  by 
a  watchman  near  by,  and  a  young  police  officer,  who 
had  been  but  seven  months  on  the  force,  bravely 
entered  the  black  and  deserted  building,  searched  it 
from  roof  to  cellar,  and  found  the  marauders  locked 
in  one  of  the  rooms.  He  called  upon  them  to  open, 
received  no  reply,  yet  without  hesitation  and  without 
knowing  what  the  consequences  to  himself  might  be, 
smashed  in  the  door  and  apprehended  the  two  men. 
One  was  found  with  a  large  bundle  of  skeleton  keys 
in  his  pocket  and  several  candles,  while  a  partially 
consumed  candle  lay  upon  the  floor.  In  the  police 
court  they  pleaded  guilty  to  a  charge  of  burglary, 
and  were  promptly  indicted  by  the  grand  jury. 

At  the  trial  they  claimed  to  have  gone  into  the 
house  to  sleep,  said  they  had  found  the  bunch  of 
keys  on  the  stairs,  denied  having  the  candles  at  all 
or  that  they  were  in  a  room  on  the  top  story,  and 
asserted  that  they  were  in  the  entrance  h-all  when 
arrested. 

The  story  told  by  the  defendants  was  so  utterly 
ridiculous  that  one  of  the  two  could  not  control  a  grin 
while  giving  his  version  of  it  on  the  witness-stand. 
The  writer,  who  prosecuted  the  case,  regarded  the 
trial  as  a  mere  formality  and  hardly  felt  that  it  was 
necessary  to  sum  up  the  evidence  at  all. 

Imagine  his  surprise  when  an  intelligent-looking 
jury  acquitted  both  the  defendants  after  practically 
no  deliberation.    Both  had  offered  to  plead  guilty 


342         THE  PEISONER  AT  THE  BAR 

to  a  slightly  lower  degree  of  crime  before  the  case 
was  moved  for  trial. 

These  two  defendants,  who  were  neither  insane 
nor  degenerates,  consorted  with  others  in  Bowery 
hotels  and  saloons, — incubators  of  crime.  What 
effect  could  such  a  performance  have  upon  them  and 
their  friends  save  to  inculcate  a  belief  that  they 
were  licensed  to  commit  as  many  burglaries  as  they 
chose?  They  had  a  practical  demonstration  that  the 
law  was  ''no  good''  and  the  system  a  failure.  If 
they  could  beat  a  case  in  which  they  had  already 
pleaded  guilty,  what  could  they  not  do  where  the 
evidence  was  less  obvious?  They  were  henceforth 
immune.  Who  shall  say  how  many  embryonic  law- 
breakers took  courage  at  the  story  and  started  upon 
an  experimental  attempt  at  crime? 

The  news  of  such  an  acquittal  must  instantly  have 
been  carried  to  the  Tombs,  where  every  other  guilty 
prisoner  took  heart  and  prepared  anew  his  defence. 
Those  about  to  plead  guilty  and  throw  themselves 
upon  the  mercy  of  the  court,  abandoned  their  honest 
purpose  and  devised  some  perjury  instead.  Crimi- 
nals almost  persuaded  that  honesty  was  the  best 
policy  changed  their  minds.  The  barometer  of  crime 
swung  its  needle  from  ''stormy"  to  "fair.'* 

But,  apart  from  the  law-breakers,  consider  the 
effect  of  such  a  miscarriage  of  justice  upon  a  young, 
honest  and  zealous  officer.  First,  all  his  good  work, 
his  bravery,  his  conscientious  effort  at  safeguard- 
ing the  sleeping  public  had  been  disregarded,  tossed 
aside  with  a  sneer,  and  had  gone  for  naught.  The 
jury  had  stamped  his  story  as  a  lie  and  stigmatized 
him,  by  their  action,  as  a  perjurer.  They  had  chosen 
two  professional  criminals  as  better  men.    His  whole 


WHAT   FOSTERS    CRIME  343 

conduct  of  the  case  instead  of  being  commended  as 
meritorious  had  resulted  in  a  solemn  public  declara- 
tion that  he  was  not  worthy  of  credence  and  that  he 
had  attempted  wilfully  to  railroad  to  State 's  prison 
two  innocent  men.  In  other  words,  that  he  ought  to 
be  there  himself.  What  was  the  use  of  trying  to  do 
good  work  any  longer?  He  might  just  as  well  loiter 
in  an  area  on  a  barrel  and  smoke  a  furtive  cigar 
when  he  ought  to  be  *  *  on  post. ' '  Perhaps  he  might 
better  ^^  stand  in'^  with  those  who  would  inevitably 
be  preferred  to  him  by  a  jury  of  their  peers. 

What  must  have  been  the  effect  on  the  court  offi- 
cers, the  witnesses,  the  defendants  out  on  bail,  the 
complainants,  the  spectators !  That  the  whole  busi- 
ness was  nonsense  and  rot!  That  the  jury  system 
was  ridiculous.  That  the  jurymen  were  either 
crooks  or  fools.  That  the  only  people  who  were  not 
insulted  and  sneered  at  were  the  law-breakers  them- 
selves. That  if  two  such  rogues  were  to  be  set  free 
all  the  other  jailbirds  might  as  well  be  let  go.  That 
an  honest  man  could  whistle  for  his  justice  and 
might  better  straightway  put  on  his  hat  and  go 
home.  That  the  only  way  to  punish  a  criminal  was 
to  punish  him  yourself — kill  him  if  you  got  the 
chance  or  get  the  crowd  to  lynch  him.  That  if  a 
thief  stole  from  you  the  shrewdest  thing  to  do  was 
to  induce  him  as  a  set-off  to  give  you  the  proceeds  of 
his  next  thieving.  That  it  was  humiliating  to  live 
in  a  town  where  a  self-confessed  rascal  could  snap 
his  fingers  at  the  law  and  go  unwhipped  of  justice. 

The  jury's  action  must  have  been  due  either  to  a 
wilful  disregard  of  their  oath  or  an  entire  miscon- 
ception of  it.  Assuming  that  the  jury  deliberately 
declined  to  obey  the  law,  the  whole  twelve  elected 


344         THE  PEISONER  AT  THE  BAR 

to  become,  and  thereby  did  become,  law-breakers. 
They  disqualified  themselves  forever  as  talesmen. 
No  prosecutor  in  his  senses  would  move  a  case  be- 
fore a  jury  which  numbered  any  one  of  them.  They 
had  arraigned  themselves  upon  the  side,  and  under 
the  standard,  of  crime.  They  became  accessories 
after  the  fact.  If  on  the  other  hand  they  miscon- 
ceived the  purpose  for  which  they  were  there  the 
performance  was  a  shocking  example  of  what  is 
possible  under  present  conditions. 

Just  as  there  are  three  general  classes  of  wrongs, 
so  there  are  three  general  and  varyingly  effective 
forms  of  restraint  against  their  perpetration.  First 
there  is  the  moral  control  exerted  by  what  is  or- 
dinarily called  conscience,  secondly  there  is  the  re- 
straint which  arises  out  of  the  apprehension  that 
the  commission  of  a  tort  will  be  followed  by  a  judg- 
ment for  damages  in  a  civil  court,  and  lastly  there 
is  the  restraint  imposed  by  the  criminal  law.  All 
these  play  their  part,  separately  or  in  conjunction. 
For  some  men  conscience  is  a  sufficient  barrier  to 
crime  or  to  those  acts  which,  while  equally  repre- 
hensible, are  not  technically  criminal ;  for  others  the 
possibility  of  pecuniary  loss  is  enough  to  keep  them 
in  the  straight  and  narrow  way;  but  for  a  large 
proportion  of  the  community  the  fear  of  criminal 
prosecution,  with  implied  disgrace  and  ignominy, 
forfeiture  of  citizenship,  and  confinement  in  a  com- 
mon jail  is  about  the  only  conclusive  reason  for 
doing  unto  others  as  they  would  the  others  should 
do  unto  them.  Were  the  criminal  law  done  away 
with  in  our  present  state  of  civilization,  religion, 
ethics  and  civil  procedure  would  be  absolutely  in- 
efficacious to  prevent  anarchy.    It  is  as  imperative 


WHAT   FOSTERS   CRIME  345 

to  the  ordinary  citizen  to  know  that  if  he  steals  he 
will  be  locked  up  as  it  is  for  the  child  to  know  that 
if  he  puts  his  hand  into  the  fire  it  will  be  burned. 
The  acquittal  of  every  thief  breeds  another,  and  the 
unpunished  murder  is  an  incentive  for  a  dozen  simi- 
lar homicides. 

Crimes  are  either  deliberate  or  the  result  of  acci- 
dent or  impulse.  The  last  class  may  rise  to  a  high 
degree  of  enormity, — such  as  manslaughter,  but 
these  crimes  are  rarely  possible  of  restraint.  The 
perpetrator  does  not  stop  to  consider,  even  if  he  be 
sober  enough  to  think  at  all,  whether  his  act  be 
moral,  whether  it  will  entail  any  civil  liability,  or 
what  will  be  its  consequences,  if  it  be  a  crime.  So 
far  as  such  acts  are  concerned  those  who  commit 
them  are  hardly  criminals  in  the  ordinary  sense, 
and  no  influence  in  the  world  is  able  to  prevent 
them. 

The  question  is  how  far  these  different  kinds  of 
restraint  operate  upon  the  community  as  a  whole 
in  the  prevention  of  deliberate  crime.  Clearly  the 
fear  of  pecuniary  loss  through  actions  brought  to 
judgment  in  the  civil  courts  is  practically  nil.  Most 
persons  who  set  out  to  commit  crime  have  no  bank 
account,  the  absence  of  one  being  generally  what 
leads  them  into  a  criminal  career. 

The  writer  has  no  intention  of  attempting  to  dis- 
cuss or  estimate  the  efficacy  of  religion  or  ethics  as 
restraining  influences.  A  certain  limited  propor- 
tion of  the  community  would  not  commit  crime  under 
any  circumstances.  It  is  enough  for  them  that  the 
act  is  forbidden  by  the  State  even  if  it  be  not  really 
wrong  from  their  own  personal  point  of  view.  Side 
by  side  with  these  very  good  people  are  a  very  large 


346         THE  PRISONEE  AT  THE  BAR 

number  who  wear  just  as  fashionable  clothing,  have 
the  same  friends,  attend  the  same  churches,  but  who 
would  commit  almost  any  crime  so  long  as  they  were 
sure  of  not  being  caught.  If  we  had  no  criminal 
law  we  should  soon  discover  who  were  the  hypocrites. 

But  for  an  overwhelming  majority  of  the  commu- 
nity something  more  practical  than  either  religion, 
ethics,  or  philosophy  is  necessary  to  keep  them  in 
order.  They  must  be  convinced  that  the  transgressor 
will  surely  be  punished, — not  some  time,  not  next 
year  or  the  year  after,  but  now.  Not,  moreover,  that 
his  way  will  be  merely  hard,  but  that  he  will  be  put 
in  stripes  and  made  to  break  stones. 

Hence  the  necessity  for  a  vigorous  and  adequate 
criminal  law  and  procedure  which  shall  command 
the  respect  and  loyalty  of  the  commuity,  adminis- 
tered by  a  fearless  judiciary  who  will  hold  jurors  to 
a  rigid  and  conscientious  obedience  to  their  oath. 

There  is  nothing  sacred  about  an  archaic  criminal 
procedure  which  in  some  respects  is  less  devised 
for  the  protection  of  the  community  than  for  the 
exculpation  of  the  guilty.  The  portals  of  liberty 
would  not  fall  down  or  the  framers  of  the  constitu- 
tion turn  in  their  graves  if  the  peremptory  chal- 
lenges allowed  to  both  sides  in  the  selection  of  a 
jury  were  reduced  to  a  reasonable  number,  or  if 
persons  found  guilty  of  crime  after  due  process  of 
law  were  compelled  to  stay  in  jail  until  their  appeals 
were  decided,  instead  of  walking  the  streets  free  as 
air  under  a  certificate  of  '* reasonable  doubt"  issued 
by  some  judge  who  personally  knew  nothing  of  the 
actual  trial  of  the  case.  As  things  stand  to-day,  a 
thief  caught  in  the  very  act  of  picking  a  pocket  in 
the  night-time  may  challenge  arbitrarily  the  twenty 


WHAT  FOSTERS  CRIME  347 

most  intelligent  talesmen  called  to  sit  as  jurors  in  his 
case.  Does  such  a  practice  make  for  justice  ?  It  is 
even  possible  that  the  sacred  bird  of  liberty  would 
not  scream  if  eleven  jurors,  instead  of  twelve,  were 
permitted  to  convict  a  defendant  or  set  him  free, 
while  the  question  of  how  far  the  right  of  appeal  in 
criminal  cases  might  properly  be  limited  or,  in  de- 
fault of  such  limitation,  how  far  under  certain  condi- 
tions it  might  be  correspondingly  extended  to  the 
community,  is  by  no  means  purely  academic*  It  is 
also  conceivable  that  some  means  might  be  found  to 
do  away  with  the  interminable  technicalities  which 
can  now  be  interposed  on  behalf  of  the  accused  to 
prevent  trials  or  the  infliction  of  sentence  after  con- 
viction. 

Yet  these  considerations  are  of  slight  moment  in 
contrast  to  that  most  crying  of  all  present  abuses, — 
the  domination  of  the  court-room  by  the  press.f  It 
is  no  fiction  to  say  that  in  many  cases  the  actual  trial 
is  conducted  in  the  columns  of  yellow  journals  and 
the  defendant  acquitted  or  convicted  purely  in  ac- 
cordance with  an  "editorial  policy."  Judges,  jurors, 
and  attorneys  are  caricatured  and  flouted.  There  is 
no  evidence,  however  incompetent,  improper,  or 
prejudicial  to  either  side,  excluded  by  the  judge  in , 
a  court  of  criminal  justice,  that  is  not  deliberately' 
thrust  under  the  noses  of  the  jury  in  flaring  letters 
of  red  or  purple  the  moment  they  leave  the  court- 
room. The  judge  may  charge  one  way  in  accordance 
with  the  law  of  the  land,  while  the  editor  charges  the 
same  jury  in  double-leaded  paragraphs  with  what 

*  "Limitation  of  the  Right  of  Appeal  in  Criminal  Cases,"  by  Nathan 
A.  Smythe,  17  Harvard  Law  Rev.  317  (1905). 

t  Cf.  "Sensational  Jom-nalism  and  the  Law,"  in  "Moral  Overstrain." 
by  G.  W.  Alger. 


348        THE    PRISONER   AT    THE   BAR 

"  unwritten  "  law  may  best  suit  the  owner  of  his  con- 
science and  his  pen.  "  Contempt  of  court "  in  its 
original  significance  is  something  known  to-day  only 
to  the  reader  of  text  books.* 

Each  State  has  its  own  particular  problem  to  face, 
but  ultimately  the  question  is  a  national  one.  Lack 
of  respect  for  law  is  characteristic  of  the  American 
people  as  a  whole.  Until  we  acquire  a  vastly  in- 
creased sense  of  civic  duty  we  should  not  complain 
that  crime  is  increasing  or  the  law  ineffective.  It 
would  be  a  most  excellent  thing  for  an  association  of 
our  leading  citizens  to  interest  itself  in  criminal-law 
reform  and  demand  and  secure  the  passage  of  new 
and  effective  legislation,  but  it  would  accomplish 
little  if  its  individual  members  continued  to  evade 
jury  service  and  left  their  most  important  duty  to 
those  least  qualified  by  education  or  experience  to 
perform  it.f  It  would  serve  some  of  this  class  of  re- 
formers right,  if  one  day,  when  after  a  life-time  of 
evasion,  they  perchance  came  to  be  tried  by  a  jury 
of  their  peers,  they  should  find  that  among  their 
twelve  judges  there  was  not  one  who  could  read  or 
write  the  English  language  with  accuracy  and  that 
all  were  ready  to  convict  anybody  because  he  lived 
in  a  brown-stone  front. 

*  By  the  New  York  Penal  Code  §  143,  an  editor  is  only  guilty  of  con- 
tempt of  court  (a  misdemeanor)  if  he  publishes  "a  false  or  grossly  inaccu- 
rate report"  of  its  proceedings.  The  most  insidious,  dangerous,  offen- 
sive and  prejudicial  matter  spread  broadcast  by  the  daily  press  does 
not  relate  to  actual  trials  at  all,  but  to  matters  entirely  outside  the 
record,  such  as  what  certain  witnesses  of  either  side  could  establish 
were  they  available,  the  "real"  past  and  character  of  the  defendant, 
etc.  The  New  York  Courts,  under  the  present  statute,  are  powerless 
to  prevent  this  abuse.  In  Massachusetts  half  a  dozen  of  our  principal 
editors  and  "special  writers"  would  have  been  locked  up  long  ago  to 
the  betterment  of  the  community  and  to  the  increase  of  respect  for  our 
courts  of  justice. 

t  "The  Citizen  and  the  Jury,"  in  "Moral  Ov*vrstrain,"  by  G.  W.  Alger. 


WHAT  FOSTEES  CEIME  349 

Merchants,  who  in  return  for  a  larger  possible 
restitution  habitually  compound  felonies  by  tacitly 
agreeing  not  to  prosecute  those  who  have  defrauded 
them,  have  no  right  to  complain  because  juries  ac- 
quit the  offenders  whom  they  finally  decide  it  to  be 
worth  their  while  to  pursue.  The  voter  who  has  not 
the  courage  to  insist  that  hypocritical  laws  should  be 
wiped  from  the  statute  books  should  express  no  sur- 
prise when  juries  refuse  to  convict  those  who  violate 
them.  The  man  who  perjures  himself  to  escape  his 
taxes  has  no  right  to  expect  that  his  fellow  citizens 
are  going  to  place  a  higher  value  upon  an  oath 
than  he. 


CHAPTER   XVIII 
INSANITY   AND   THE   LAW 

Harky  Kendall  Thaw  shot  and  killed  Stanford 
White  on  the  25th  day  of  June,  1905.  Although 
most  of  the  Coroner's  jury  which  first  sat  upon  the 
case  considered  him  irrational,  he  was  committed 
to  the  Tombs  and,  having  been  indicted  for  murder, 
remained  there  over  six  months  pending  his  trial. 
During  that  time  it  was  a  matter  of  common 
knowledge  that  his  defence  was  to  be  that  he  was 
insane  at  the  time  of  the  shooting,  but  as  under 
the  New  York  law  it  is  not  necessary  specifically  to 
enter  a  plea  of  insanity  to  the  indictment  in  order 
to  take  advantage  of  that  defence  (which  may  be 
proven  under  the  general  plea  of  "not  guilty"), 
there  was  nothing  officially  on  record  to  indicate 
this  purpose.  Neither  was  it  possible  for  the  Dis- 
trict Attorney  to  secure  any  evidence  of  Thaw's 
mental  condition,  since  he  positively  refused  either 
to  talk  to  the  prosecutor's  medical  representatives 
or  to  allow  himself  to  be  examined  by  them.  Mr. 
Jerome  therefore  was  compelled  to  enter  upon  an 
elaborate  and  expensive  preparation  of  the  case, 
not  only  upon  its  merits,  but  upon  the  possible 
question  of  the  criminal  irresponsibility  of  the 
defendant. 

The  case  was  moved  in  January,  1906,  and  the 
defence  thereupon  proceeded  to  introduce  a  limited 
amount  of  testimony  tending  to  show  that  Thaw 

350 


INSANITY   AND   THE   LAW  351 

was  insane  when  lie  did  the  shooting.  While  much 
of  this  evidence  commended  itself  but  little  to 
either  the  prosecutor  or  the  jury,  it  was  sufficient 
to  raise  grave  doubt  as  to  whether  the  accused  was 
a  fit  subject  for  trial.  The  District  Attorney's 
experts  united  in  the  opinion  that,  while  he  knew 
that  he  was  doing  wrong  when  he  shot  White,  he 
was,  nevertheless,  the  victim  of  a  hopeless  pro- 
gressive form  of  insanity  called  dementia  prcBcox, 
In  the  midst  of  the  trial,  therefore,  Mr.  Jerome 
moved  for  a  commission  to  examine  into  the  ques- 
tion of  how  far  Thaw  was  capable  of  understanding 
the  nature  of  the  proceedings  against  him  and 
consulting  with  counsel,  and  frankly  expressed  his 
personal  opinion  in  open  court  that  Thaw  was  no 
more  a  proper  subject  for  trial  than  a  baby.  A 
commission  was  appointed  which  reported  the 
prisoner  sane  enough  to  be  tried,  and  the  case  then 
proceeded  at  great  length  with  the  surprising 
result  that,  in  spite  of  the  District  Attorney's 
earlier  declaration  that  he  believed  Thaw  to  be 
insane,  the  jury  disagreed  as  to  his  criminal  re- 
sponsibility, a  substantial  number  voting  for  con- 
viction. Of  course,  logically,  they  would  have  been 
obliged  either  to  acquit  entirely  on  the  ground  of 
insanity  or  convict  of  murder  in  the  first  degree, 
but  several  voted  for  murder  in  the  second  degree. 
A  year  now  elapsed,  during  which  equally  elab- 
orate preparations  were  made  for  a  second  trial. 
The  State  had  already  spent  some  $25,000,  and  yet 
its  experts  had  never  had  the  slightest  opportunity 
to  examine  or  interrogate  the  defendant,  for  the 
latter  had  not  taken  the  stand  at  the  first  trial. 
The  District  Attorney  still  remained  on  record  as 


352        THE   PEISONER   AT    THE   BAR 

having  declared  Thaw  to  be  insane,  and  his  own 
experts  were  committed  to  the  same  proposition, 
yet  his  official  duty  compelled  him  to  prosecute  the 
defendant  a  second  time.  The  first  prosecution  had 
occupied  months  and  delayed  the  trial  of  hundreds 
of  other  prisoners,  and  the  next  bid  fair  to  do  the 
same.  But  at  this  second  trial  the  defence  in- 
troduced enough  testimony  within  two  days  to 
satisfy  the  public  at  large  of  the  unbalanced 
mental  condition  of  the  defendant  from  boyhood. 

After  a  comparatively  short  period  of  delibera- 
tion the  jury  acquitted  the  prisoner  "  on  the  ground 
of  insanity,"  which  may  have  meant  either  one  of 
two  things:  (a)  that  they  had  a  reasonable  doubt 
in  their  own  minds  that  Thaw  knew  that  he  was 
doing  wrong  when  he  committed  the  murder — some- 
thing hard  for  the  layman  to  believe,  or  (h)  that, 
realizing  that  he  was  undoubtedly  the  victim  of  men- 
tal disease,  they  refused  to  follow  the  strict  legal 
test. 

Nearly  two  years  had  elapsed  since  the  homicide ; 
over  a  hundred  thousand  dollars  had  been  spent 
upon  the  case;  every  comer  of  the  community  had 
been  deluged  with  detailed  accounts  of  unspeakable 
filth  and  depravity;  the  moral  tone  of  society  had 
been  depressed;  and  the  only  element  which  had 
profited  by  this  whole  lamentable  and  unnecessary 
proceeding  had  been  the  sensational  press.  Yet 
the  sole  reason  for  it  all  was  that  the  law  of  the 
land  in  respect  to  insane  persons  accused  of  crime 
was  hopelessely  out  of  date. 

The  question  of  how  far  persons  who  are  victims 
of  diseased  mind  shall  be  held  criminally  respon- 
sible  for    their    acts    has    vexed    judges,    jurors, 


INSANITY   AND    THE   LAW  353 

doctors,  and  lawyers  for  the  last  hundred  years. 
During  that  time,  in  spite  of  the  fact  that  the  law 
has  lagged  far  behind  science  in  the  march  of 
progress,  we  have  blundered  along  expecting  our 
juries  to  reach  substantial  justice  by  dealing  with 
each  individual  accused  as  most  appeals  to  their 
enlightened  common  sense. 

And  the  fact  that  they  have  obeyed  their  common 
sense  rather  than  the  law  is  the  only  reason  why 
our  present  antiquated  and  unsatisfactory  test  of 
who  shall  be  and  who  shall  not  be  held  "  respon- 
sible "  in  the  eye  of  the  law  remains  untouched 
upon  the  statute-books.  Because  its  inadequacy  is 
so  apparent,  and  because  no  experienced  person 
seriously  expects  juries  to  apply  it  consistently,  it 
fairly  deserves  first  place  in  any  discussion  of 
present  problems. 

Thanks  to  human  sympathy,  the  law  governing 
insanity  has  had  comparatively  few  victims,  but 
the  fact  remains  that  more  than  one  irresponsible 
insane  man  has  swung  miserably  from  the  scaffold. 
But  "  hard  cases  "  do  more  than  "  make  bad  law," 
they  make  lawlessness.  A  statute  systematically 
violated  is  worse  than  no  statute  at  all,  and  exactly 
in  so  far  as  we  secure  a  sort  of  justice  by  evading 
the  law  as  it  stands,  we  make  a  laughing-stock  of  our 
procedure. 

The  law  is,  simply,  that  any  person  is  to  be  held 
criminally  responsible  for  a  deed  unless  he  was  at 
the  time  laboring  imder  such  a  defect  of  reason  as 
not  to  know  the  nature  and  quality  of  his  act  and 
that  it  was  wrong. 

This  doctrine  first  took  concrete  form  in  1843, 
when,  after  a  person  named  McNaughten,  who  had 


354       THE   PEISONER   AT   THE   BAR 

shot  and  killed  a  certain  Mr.  Drummond  under  an 
insane  delusion  that  the  latter  was  Sir  Robert  Peel, 
had  been  acquitted,  there  was  such  popular  uneasi- 
ness over  the  question  of  what  constituted  criminal 
responsibility  that  the  House  of  Lords  submitted 
four  questions  to  the  fifteen  judges  of  England 
asking  for  an  opinion  on  the  law  governing  respon- 
sibility for  offences  committed  by  persons  afflicted 
with  certain  forms  of  insanity.  It  is  unnecessary 
to  set  forth  at  length  these  questions,  but  it  is 
enough  to  say  that  the  judges  formulated  the  fore- 
going rule  as  containing  the  issue  which  should  be 
submitted  to  the  jury  in  such  cases.* 

Now,  with  that  commendable  reverence  for  ju- 
dicial utterance  which  is  so  characteristic  of  the 
English  nation,  and  is  so  conspicuously  absent  in 

*  The  questions  propounded  to  the  judges  and  their  answers  are  here 
given : 

Question  1.— "What  is  the  law  respecting  alleged  crimes  committed 
by  persons  afflicted  with  insane  delusion  in  respect  of  one  or  more  par- 
ticular subjects  or  persons,  as,  for  instance,  where,  at  the  time  of  the 
commission  of  the  alleged  crime,  the  accused  knew  he  was  acting  con- 
trary to  law,  but  did  the  act  complained  of  with  a  view,  under  the  in- 
fluence of  insane  delusion,  of  redressing  or  revenging  some  supposed 
grievance  or  injury,  or  of  producing  some  supposed  public  benefit? 

Answer  1. — "Assuming  that  your  lordships'  inquiries  are  confined 
to  those  persons  who  labor  under  such  partial  delusions  only,  and  are  not 
in  other  respects  insane,  we  are  of  opinion  that,  notwithstanding  the 
accused  did  the  act  complained  of  with  a  view,  imder  the  influence  of 
insane  delusion,  of  redressing  or  revenging  some  supposed  grievance  or 
injury,  or  of  producing  some  public  benefit,  he  is,  nevertheless,  punishable, 
according  to  the  nature  of  the  crime  committed,  if  he  knew  at  the  time 
of  committing  such  crime  that  he  was  acting  contrary  to  law,  by  which 
expression  we  understand  your  lordships  to  mean  the  law  of  the  land. 

Question  4. — "If  a  person  under  an  insane  delusion  as  to  existing 
facts  commits  an  offence  in  consequence  thereof,  is  he  thereby  excused? 

Answer  4. — "The  answer  must  of  course  depend  on  the  nature  of  the 
delusion;  but,  making  the  same  assumption  as  we  did  before,  namely, 
that  he  labors  under  such  partial  delusion  only,  and  is  not  in  other 
respects  insane,  we  think  he  must  be  considered  in  the  same  situation 
as  to  responsibility  as  if  the  facts  with  respect  to  which  the  delusions 
exist  were  real.  For  example,  if  under  the  influence  of  his  delusion  he 
supposes  another  man  to  be  in  the  act  of  attempting  to  take  away  his 
life,  and  kills  the  man,  as  he  supposes  in  self-defence,  he  would  be  exempt 
from  punishment.     If  his  delusion  was  that  the  deceased  had  inflicted 


INSANITY   AND    THE   LAW  355 

our  own  country,  it  was  assumed  until  recently  that 
this  solemn  pronunciamento  was  the  last  word  on 
the  question  of  criminal  responsibility  and  settled 
the  matter  once  and  forever.  Barristers  and  legis- 
lators did  not  trouble  themselves  particularly  over 
the  fact  that  in  1843  the  study  of  mental  disease 
was  in  its  infancy,  and  judges,  including  those  of 
England,  probably  knew  even  less  about  the  subject 
than  they  do  now.  In  1843  it  was  supposed  that 
insanity,  save  of  the  sort  that  was  obviously 
maniacal,  necessitated  "  delusions,"  and  unless  a 
man  had  these  delusions  no  one  regarded  him  as 
insane.    In  the  words  of  a  certain  well-known  judge : 

"The  true  criterion,  the  true  test  of  the  absence  or 
presence  of  insanity,  I  take  to  be  the  absence  or  presence 
of  what,  used  in  a  certain  sense  of  it,  is  comprisable  in  a 
single  term,  namely,  delusion.  ...  In  short,  I  look  on 
delusion  .  .  .  and  insanity  to  be  almost,  if  not  altogether, 
convertible  terms.''  * 

This  in  a  certain  broad  sense,  probably  not  in- 
tended by  the  judge  who  made  the  statement,  is 
nearly  true,  but,  unfortunately,  is  not  entirely  so. 

a  serious  injury  to  his  character  and  fortune,  and  he  killed  him  in  re- 
venge for  such  supposed  injury,  he  would  be  liable  to  punishment. 

Qiiestion  2. — "What  are  the  proper  questions  to  be  submitted  to  the 
jury  when  a  person,  afflicted  with  insane  delusions  respecting  one  or 
more  particular  subjects  or  persons,  is  charged  with  the  commission  of  a 
crime  (murder,  for  instance),  and  insanity  is  set  up  as  a  defence? 

Question  3. — ''In  what  terms  ought  the  question  to  be  left  to  the 
jury  as  to  the  prisoner's  state  of  mind  when  the  act  was  committed? 

Answers  2  and  3. — "As  these  two  questions  appear  to  us  to  be  more 
conveniently  answered  together,  we  submit  our  opinion  to  be  that  the 
jurors  ought  to  be  told,  in  all  cases,  that  every  man  is  presumed  to  be 
sane,  and  to  i>ossess  a  sufficient  degree  of  reason  to  be  responsible  for 
his  crimes,  until  the  contrary  be  proved  to  their  satisfaction;  and  that, 
to  establish  a  defence  on  the  ground  of  insanity  it  must  be  clearly  proved 
that  at  the  time  of  committing  the  act  the  accused  was  laboring  under 
such  a  defect  of  reason,  from  disease  of  the  mind,  as  not  to  know  the 
nature  and  quality  of  the  act  he  was  doing,  or,  if  he  did  know  it,  that 
he  did  not  know  he  was  doing  what  was  wrong."  (The  remainder  of  the 
answer  goes  on  to  discuss  the  usual  way  the  question  is  put  to  the  jury.) 

*  Dew  vs.  Clark. 


356        THE    PEISONER   AT    THE   BAB 

The  dense  ignorance  surrounding  mental  disease 
and  the  barbarous  treatment  of  the  insane  within 
a  century  are  facts  familiar  to  everybody.  Lunatics 
were  supposed  to  be  afflicted  with  demons  or  devils 
which  took  possession  of  them  as  retribution  for 
their  sins,  and  in  addition  to  the  hopelessly  or 
maniacally  insane,  medical  science  recognized  only 
a  so-called  "  partial  "  or  delusionary  insanity.  To- 
day it  would  be  regarded  about  as  comprehensive 
to  relate  all  mental  diseases  to  the  old-fashioned 
"  delusion  "  as  to  regard  as  insane  only  those  who 
frothed  at  the  mouth. 

But  the  particular  individual  out  of  whose  case 
in  1843  arose  the  rule  that  is  in  1908  applied  to  all 
defendants  indiscriminately  was  the  victim  of  a 
clearly  defined  insane  delusion,  and  the  four  ques- 
tions answered  by  the  judges  of  England  relate 
only  to  persons  who  are  ''  afflicted  with  insane 
delusions  in  respect  to  one  or  more  particular  sub- 
jects or  persons/^  Nothing  is  said  about  insane 
persons  without  delusions,  or  about  persons  with 
general  delusions,  and  the  judges  limit  their  an- 
swers even  further  by  making  them  apply  "  to  those 
persons  who  labor  under  such  partial  delusion  only 
and  are  not  in  other  respects  insane '' — a  medical 
impossibility. 

Modern  authorities  agree  that  a  man  cannot  have 
insane  delusions  and  not  be  in  other  respects  in- 
sane, for  it  is  mental  derangement  which  is  the 
cause  of  the  delusion. 

In  the  first  place,  therefore,  a  fundamental  con- 
ception of  the  judges  in  answering  the  questions 
was  probably  fallacious,  and  in  the  second,  although 
the    test    they   offered    was    distinctly   limited    to 


INSANITY   AND   THE   LAW  357 

persons  ''afflicted  with  insane  delusions''  it  has 
ever  since  been  applied  to  all  insane  persons  ir- 
respective of  their  symptoms. 

Finally,  whether  the  judges  knew  anything  about 
insanity  or  not,  and  whether  in  their  answers  they 
weighed  their  words  very  carefully  or  not,  the  test 
as  they  laid  it  down  is  by  no  means  clear  from  a 
medical  or  even  legal  point  of  view. 

Was  the  accused  laboring  under  such  a  defect  of 
reason  as  not  to  know  the  nature  and  quality  of  the 
act  he  was  doing,  or  not  to  Icnow  that  it  was  wrong  ? 
What  did  these  judges  mean  by  Jcnowl  What  does 
the  reader  mean  by  know  f  What  does  the  ordinary 
juryman  mean  by  it? 

We  are  left  in  doubt  as  to  whether  the  word 
should  be  given,  as  Justice  Stephens  contended  it 
should  be,  a  very  broad  and  liberal  interpretation 
such  as  "  able  to  judge  calmly  and  reasonably  of 
the  moral  or  legal  character  of  a  proposed  action,"  * 
or  a  limited  and  qualified  one.  There  are  all  grades 
and  degrees  of  "knowledge,"  and  it  is  more  than 
probable  that  there  is  a  state  of  mind  which  I 
have  heard  an  astute  expert  call  upon  the  witness 
stand  "  an  insane  knowledge,"  and  equally  obvious 
that  there  may  be  "imperfect"  or  "incomplete 
knowledge,"  where  the  victim  sees  "  through  a  glass 
darkly."  Certainly  it  seems  far  from  fair  to  in- 
terpret the  test  of  responsibility  to  cover  a  condition 
where  the  accused  may  have  had  a  hazy  or  dream- 
like realization  that  his  act  was  technically  contrary 
to  the  law,  and  even  more  dangerous  to  make  it  ex- 
clude one  who  was  simply  unable  to  "  judge  calmly 
and  reasonably  "  of  his  proposed  action,  a  doctrine 

*  "General  View  of  the  Criminal  Law,"  p.  80. 


358       THE   PEISONER   AT   THE   BAE 

which  could  almost  be  invoked  by  any  one  who  com- 
mitted homicide  in  a  state  of  anger. 

Ordinarily  the  word  is  not  defined  at  all  and  the 
befuddled  juryman  is  left  to  his  own  devices  in  de- 
termining what  significance  he  shall  attach  not  only 
to  this  word  but  to  the  test  as  a  whole. 

An  equally  ambiguous  term  is  the  word  "  wrong." 
The  judges  made  no  attempt  to  define  it  in  1843, 
and  it  has  been  variously  interpreted  ever  since. 
Now  it  may  mean  "  contrary  to  the  dictates  of 
conscience "  or,  as  it  is  usually  construed,  "  con- 
trary to  the  law  of  the  land  " — and  exactly  what 
it  means  may  make  a  great  difference  to  the  accused 
on  trial.  If  the  defendant  thinks  that  God  has 
directed  him  to  kill  a  wicked  man,  he  may  know 
that  such  an  act  will  not  only  be  contrary  to  law, 
but  also  in  opposition  to  the  moral  sense  of  the 
community  as  a  whole,  and  yet  he  may  believe  that 
it  is  his  conscientious  duty  to  take  life.  In  the  case 
of  Hadfield,  who  deliberately  fired  at  George  III 
in  order  to  be  hung,  the  defendant  believed  himself 
to  be  the  Lord  Jesus  Christ,  and  that  only  by  so 
doing  could  the  world  be  saved.  Applying  the  legal 
test  and  translating  the  word  "  wrong "  as  con- 
trary to  the  common  morality  of  the  community 
wherein  he  resided  or  contrary  to  law,  Hadfield 
ought  to  have  achieved  his  object  and  been  given 
death  upon  the  scaffold  instead  of  being  clapped, 
as  he  was,  into  a  lunatic  asylum. 

On  the  other  hand,  if  the  word  "  wrong  "  is  judi- 
cially interpreted  to  mean  "  contrary  to  the  dictates 
of  conscience,"  it  would  seem  to  be  given  an  elasticity 
which  would  invite  inevitable  confusion  as  well  as 
abuse. 


INSANITY   AND   THE   LAW  359 

Moreover,  the  test  in  question  takes  no  cogni- 
zance of  persons  who  have  no  power  of  control. 
The  law  of  New  York  and  most  of  the  states  does 
not  recognize  "  irresistible  impulses,"  but  it  should 
admit  the  medical  fact  that  there  are  persons  who, 
through  no  fault  of  their  own,  are  born  practically 
without  any  inhibitory  capacity  whatever,  and  that 
there  are  others  whose  control  has  been  so  weakened, 
through  accident  or  disease,  as  to  render  them 
morally  irresponsible, — the  so-called  psychopathic 
inferiors. 

Most  of  us  are  only  too  familiar  with  the  state 
of  a  person  just  falling  under  the  influence  of  an 
anesthetic,  when  all  the  senses  seem  supernaturally 
acute,  the  reasoning  powers  are  active  and  unim- 
paired, and  the  patient  is  convinced  that  he  can  do 
as  he  wills,  whereas,  in  reality,  he  says  and  does 
things  which  later  on  seem  impossible  in  their 
absurdity.  Such  a  condition  is  equally  possible  to 
the  victim  of  mental  disease,  where  the  knowledge 
of  right  and  wrong  has  no  real  relevancy. 

The  test  of  irresponsibility  as  defined  by  law  is 
hopelessly  inadequate,  judged  by  present  medical 
knowledge.  There  is  no  longer  any  pretence  that  a 
perception  of  the  nature  and  quality  of  an  act  or 
that  it  is  wrong  or  right  is  conclusive  of  the  actual 
insanity  of  a  particular  accused.  In  a  recent  mur- 
der case  a  distinguished  alienist,  testifying  for  the 
prosecution,  admitted  that  over  seventy  per  cent, 
of  the  patients  under  his  treatment,  all  of  whom  he 
regarded  as  insane  and  irresponsible,  knew  what 
they  were  doing  and  could  distinguish  right  from 
wrong. 

Countless  attempts  have  been  made  to  reconcile 


360       THE   PRISONER   AT   THE   BAR 

this  obvious  anachronism  with  justice  and  modern 
knowledge,  but  always  without  success,  and  courts 
have  wriggled  hard  in  their  efforts  to  make  the  test 
adequate  to  the  particular  cases  which  they  have 
been  trying,  but  only  with  the  result  of  hopelessly 
confounding  the  decisions. 

But,  however  it  is  construed,  the  test  as  laid 
down  in  1843  is  insufficient  in  1908.  Medical  science 
has  marched  on  with  giant  strides,  while  the  law, 
so  far  as  this  subject  is  concerned,  has  never  pro- 
gressed at  all.  It  is  no  longer  possible  to  determine 
mental  responsibility  by  any  such  artificial  rule  as 
that  given  by  the  judges  to  the  Lords  in  Mc- 
Naughten's  case,  and  which  juries  are  supposed  to 
apply  in  the  courts  of  to-day.  I  say  "  supposed," 
for  juries  do  not  apply  it,  and  the  reason  is  simple 
enough — you  cannot  expect  a  juryman  of  intel- 
ligence to  follow  a  doctrine  of  law  which  he  in- 
stinctively feels  to  be  crude  and  which  he  knows  is 
arbitrarily  applied. 

No  juryman  believes  himself  capable  of  success- 
fully analyzing  a  prisoner's  past  mental  condition, 
and  he  is  apt  to  suspect  that,  however  sincere  the 
experts  on  either  side  may  appear,  their  opinions 
may  be  even  less  definite  than  the  terms  in  which 
they  are  expressed.  The  spectacle  of  an  equal 
number  of  intellectual-looking  gentlemen,  all  using 
good  English  and  all  wearing  clean  linen,  reaching 
diametrically  opposite  conclusions  on  precisely  the 
same  facts,  is  calculated  to  fill  the  well-intentioned 
juror  with  distrust.  Painful  as  it  is  to  record  the 
fact,  juries  are  sometimes  almost  as  sceptical  in 
regard  to  doctors  as  they  always  are  in  regard  to 
lawyers. 


INSANITY   AND   THE   LAW  361 

The  usual  effect  of  the  expert  testimony  on  one 
side  is  to  neutralize  that  on  the  other,  for  there  is 
no  practical  way  for  the  jury  to  distinguish  between 
experts,  since  the  foolish  ones  generally  look  as 
learned  as  the  wise  ones.  The  result  is  hopeless  con- 
fusion on  the  part  of  the  juryman,  an  inclination  to 
"  throw  it  all  out,"  and  a  resort  to  other  testimony 
to  help  him  out  of  his  difficulty.  Of  course  he  has  no 
individual  way  of  telling  whether  the  defendant 
^' knew  right  from  wrong/'  whatever  that  may 
mean,  and  so  the  ultimate  test  that  he  applies  is 
apt  to  be  whether  or  not  the  defendant  is  really 
"queer,"  "nutty"  or  "bughouse,"  or  some  other 
equally  intelligible  equivalent  for  "medically  in- 
sane." 

The  unfortunate  consequence  is  that  there  is  so 
general  and  growing  a  scepticism  about  the  plea 
of  insanity,  entirely  apart  from  its  actual  merits, 
that  it  is  difficult  in  ordinary  cases,  whatever  the 
jurors  may  think  or  say  in  regard  to  the  matter, 
to  secure  twelve  men  who  will  give  the  defence  fair 
consideration  at  the  outset. 

This  is  manifest  in  frequent  expressions  from 
talesmen  such  as :  "I  think  the  defence  of  insanity 
is  played  out,"  or  "  I  believe  everybody  is  a  little 
insane,  anyhow"  (very  popular  and  regarded  by 
jurymen  as  witty),  or  "Well,  I  have  an  idea  that 
when  a  fellow  can't  cook  up  any  other  defence  he 
claims  to  be  insane." 

The  result  is  a  rather  paradoxical  situation :  The 
attitude  of  the  ordinary  jury  in  a  homicide  case, 
where  the  defence  of  insanity  is  interposed,  is 
usually  at  the  outset  one  of  distrust,  and  their  im- 
pulse is  to  brush  the  claim  aside.    This  tendency  is 


362        THE   PEISONER   AT    THE   BAR 

strengthened  by  the  legal  presumption,  which  the 
prosecutor  invariably  calls  to  their  attention,  that 
the  defendant  is  sane.  Every  expert  who  has  testi- 
fied for  the  defence  in  the  ordinary  "knock  down 
and  drag  out  "  homicide  case  must  have  felt  with  the 
prisoner's  attorneys,  that  it  was  "  up  to  them ''  not 
so  much  to  create  a  douht  of  the  defendant's  sanity 
as  to  prove  that  he  was  insane,  if  they  expected 
consideration  from  the  jury. 

Now  let  us  assume  that  the  defence  is  merito- 
rious and  that  the  prisoner's  experts  have  created  a 
favorable  impression.  Let  us  go  even  further  and 
assume  that  they  have  generated  a  reasonable 
doubt  in  the  mind  of  the  jury  as  to  the  defendant's 
responsibility  at  the  time  he  committed  the  offence. 
What  generally  occurs?  Not,  as  one  would  suppose, 
an  acquittal,  but,  in  nine  cases  out  of  ten,  a  convic- 
tion in  a  lower  degree. 

The  only  usual  result  of  an  honest  claim  of  ir- 
responsibility on  the  ground  of  insanity  is  to  lead  the 
jury  to  reduce  the  grade  of  the  offence  from  murder 
in  the  first,  entailing  the  death  penalty,  to  murder 
in  the  second  degree.  The  jury  have  no  intention 
of  "  taking  the  chance  "  involved  in  turning  the  man 
loose  on  the  community  and  their  minds  are  filled 
with  the  predominating  fact  that  a  human  being 
has  been  killed.  They  have  an  idea  that  it  is  as 
easy  to  get  "  sworn  out "  of  a  lunatic  asylum  as 
they  suppose  it  is  to  get  "  sworn  into  "  one,  and 
they  know  that  if  the  prisoner  is  found  to  be  insane 
when  sent  to  State's  prison  he  will  be  transferred 
elsewhere.  They,  therefore,  as  a  rule,  waste  little 
time  upon  the  question  of  how  far  the  defendant 
was  irresponsible  within  the  legal  definition  when 


INSANITY   AND    THE   LAW  363 

he  committed  the  deed,  but  convict  him  "  on  general 
principles,"  trusting  the  prison  officials  to  remedy- 
any  possible  injustice.  The  jury  in  such  cases 
ignore  the.  law  and  decline  either  to  acquit  or  to 
convict  in  accordance  with  the  test.  Their  action 
becomes  rather  that  of  a  lay  commission  condemning 
the  prisoner  to  hard  labor  for  life  on  the  ground 
that  he  is  medically  iQsane. 

Assuming  that  the  jury  take  the  defence  seriously, 
there  is  only  one  class  of  cases  where,  in  the  writer's 
opinion,  they  follow  the  legal  test  as  laid  down  by 
the  court — that  is  to  say,  in  cases  of  extreme 
brutality.  Here  they  hold  the  prisoner  to  the  letter 
of  the  law,  and  the  more  abhorrent  the  crime  (even 
where  its  nature  might  indicate  to  a  physician  that 
the  accused  was  the  victim  of  some  sort  of  mania) 
the  less  likely  they  are  to  acquit.  The  writer  has 
prosecuted  perhaps  a  dozen  homicide  and  other 
cases  where  the  defence  was  insanity.  In  his  own 
experience  he  has  known  of  no  acquittal.  In 
several  instances  the  defendants  were  undoubtedly 
insane,  but,  strictly  speaking,  probably  vaguely  knew 
the  nature  and  quality  of  their  acts  and  that  they 
were  wrong.  In  a  few  of  these  the  juries  convicted 
of  murder  in  the  first  degree  because  the  circum- 
stances surrounding  the  homicides  were  so  brutal 
that  the  harshness  of  the  technical  doctrine  they 
were  required  to  apply  was  overshadowed  in  their 
minds  by  their  horror  of  the  act  itself.  In  other 
cases,  where  either  the  accused  appeared  obviously 
abnormal  as  he  sat  at  the  bar  of  justice,  or  the 
details  of  the  crime  were  less  abhorrent,  they  con- 
victed of  murder  in  the  second  degree  in  accordance 
with  the  reasoning  set  forth  in  the  foregoing  para- 


364       THE    PEISONER   AT    THE   BAR 

graph.  The  writer  seriously  advances  the  sug- 
gestion that  the  more  the  brutality  of  a  homicide 
indicates  mental  derangement  the  less  chance  the 
defendant  has  to  secure  an  acquittal  upon  the  plea 
of  insanity. 

And  this  leads  us  to  that  increasingly  large  body 
of  cases  where  the  usual  scepticism  of  the  jury  in 
regard  to  such  defences  is  counterbalanced  by  some 
real  or  imaginary  element  of  sympathy.  In  cities 
like  New  York,  where  the  jury  system  is  seen  at  its 
very  best,  where  the  statistics  show  seventy  per  cent, 
of  convictions  by  verdict  for  the  year  1907,  and 
where  the  sentiment  of  the  community  is  against  the 
invocation  of  any  law  supposedly  higher  than  that 
of  the  State,  our  talesmen  are  unwilling  to  condone 
homicide  or  to  act  as  self-constituted  pardoning 
bodies,  for  they  know  that  an  obviously  lawless 
verdict  will  bring  down  upon  them  the  censure  of 
the  public  and  the  press.  This  is  perhaps  demon- 
strated by  the  fact  that  in  New  York  County  a 
higher  percentage  of  women  are  convicted  of  homi- 
cide than  of  men. 

But  the  plea  of  insanity,  with  its  vague  test  of 
responsibility,  whose  terms  the  juryman  may  con- 
strue for  himself  (or  which  his  fellow- jurors  may 
construe  for  him)  offers  an  unlimited  and  fertile 
field  for  the  "  reasonable  "  doubt  and  an  easy  excuse 
for  the  conscientious  talesman  who  wants  to  acquit 
if  he  can.  Juries  take  little  stock  in  irresistible  im- 
pulses and  emotional  or  temporary  insanity  save 
as  a  cloak  to  cover  an  unrighteous  acquittal. 

In  no  other  class  of  cases  does  "luck"  play  so 
large  a  part  in  the  final  disposition  of  the  prisoner. 
A  jury  is  quite  as  likely  to  send  an  insane  man  to  the 


INSANITY   AND    THE   LAW  365 

electric  chair  as  to  acquit  a  defendant  who  is  fully 
responsible  for  his  crime. 
To  recapitulate  from  the  writer^s  experience: 

(1)  The  ordinary  juror  tends  to  be  sceptical  as  to 
the  good  faith  of  the  defence  of  insanity. 

(2)  When  once  this  distrust  is  removed  by  honest 
evidence  on  the  part  of  the  defence,  he  usually  de- 
clines to  follow  the  legal  test  as  laid  down  by  the 
court  on  the  general  theory  that  any  one  but  an 
idiot  or  a  maniac  has  some  knowledge  of  what  he  is 
doing  and  whether  it  is  right  or  wrong. 

(3)  He  applies  the  strict  legal  test  only  in  cases  of 
extreme  brutality. 

(4)  In  all  other  cases  he  follows  the  medical  rather 
than  the  legal  test,  but  instead  of  acquitting  the  ac- 
cused on  account  of  his  medical  irresponsibility, 
merely  convicts  in  a  lower  degree. 

The  following  deductions  may  also  fairly  be  made 
from  observation : 

(1)  That  the  present  legal  test  for  criminal  re- 
sponsibility is  admittedly  vague  and  inadequate, 
affording  great  opportunity  for  divergent  expert 
testimony  and  a  readily  availed  of  excuse  for  the 
arbitrary  and  sentimental  actions  of  juries,  to 
which  is  largely  due  the  distrust  prevailing  of  the 
claim  of  insanity  when  interposed  as  a  deference  to 
crime. 

(2)  That  expert  medical  testimony  in  such  cases 
is  largely  discounted  by  the  layman. 

(3)  That  in  no  class  of  cases  are  the  verdicts  of 
jurors  so  apt  to  be  influenced  solely  by  emotion  and 
prejudice,  or  to  be  guided  less  by  the  law  as  laid 
down  by  the  court. 

(4)  That  a  new  definition  of  criminal  responsi- 


366       THE   PEISONER   AT    THE   BAR 

bility  is  necessary,  based  upon  present  knowledge 
of  mental  disease  and  its  causes. 

(5)  Lastly,  that,  as  whatever  definition  may  be 
adopted  will  inevitably  be  difficult  of  application  by 
an  untutored  lay  jury,  our  procedure  should  be  so 
amended  that  they  may  be  relieved  wherever  pos- 
sible of  a  task  sufficiently  difficult  for  even  the  most 
experienced  and  expert  alienists. 

A  classification  of  the  different  forms  of  insanity, 
based  upon  its  causes  to  which  the  case  of  any 
particular  accused  might  be  relegated,  such  as  has 
recently  been  urged  by  a  distinguished  young 
neurologist,  would  not,  with  a  few  exceptions,  assist 
us  in  determining  his  responsibility.  It  would  be 
easy  to  say  then,  as  now,  that  lunatics  or  maniacs 
should  not  be  held  responsible  for  their  acts,  but 
we  should  be  left  where  we  are  at  present  in  regard 
to  all  those  shadowy  cases  where  the  accused  had 
insane,  incomplete  or  imperfect  knowledge  of  what 
he  was  doing.  It  would  be  ridiculous,  for  example, 
to  lay  down  a  general  rule  that  no  person  suffering 
from  hysterical  insanity  should  be  punished  for  his 
acts.  Yet,  even  so,  such  a  classification  would  in- 
stantly remedy  that  anachronism  in  our  present  law 
which  refuses  to  recognize  as  irresponsible  those 
bom  without  power  to  control  their  emotions — the 
psychopathic  inferiors  of  science,  and  the  real  vic- 
tims of  dementia  prcecox. 

Of  course,  if  the  insanity  under  which  the  de- 
fendant labors  bears  no  relation  to  or  connection 
with  the  deed  for  which  he  is  on  trial,  there  would 
logically  be  no  reason  why  his  insanity  on  other 
subjects  should  be  any  defence  to  his  crime.     For 


INSANITY   AND   THE   LAW  367 

example,  there  is  the  well-known  case  of  the  Harvard 
professor  who  was  apparently  sane  on  all  other 
matters,  yet  believed  himself  to  be  possessed  of 
glass  legs.  Had  this  man  in  wanton  anger  struck 
and  killed  another,  his  "glass  leg"  delusion  could 
not  logically  have  availed  him.  If,  however,  he  had 
struck  and  killed  one  who  he  believed  was  going  to 
shatter  his  legs  it  might  have  been  important.  The 
illustration  is  clear  enough,  but  its  application  prob- 
ably involves  a  mistaken  premise.  If  he  thought  he 
had  glass  legs  his  mind  was  undoubtedly  deranged 
— whether  enough  or  not  enough  to  constitute  him 
irresponsible  or  beyond  the  effect  of  penal  discipline 
might  be  a  difficult  question.  The  generally  accepted 
doctrine  is,  that  if  a  man  has  a  delusion  concerning 
something,  which  if  actually  existing  as  he  believed 
it  to  be  would  be  no  excuse  for  his  committing  the 
criminal  act,  he  is  responsible  and  liable  to  punish- 
ment ;  but,  as  Bishop  well  says : 

"This  branch  of  the  doctrine  should  be  cautiously  re- 
ceived; for  delusion  of  any  kind  is  strongly  indicative  of 
a  generally  diseased  mind." 

The  new  test  to  determine  responsibility  will 
recognize,  as  does  the  law  of  Germany,  that  there 
can  be  no  criminal  act  where  the  free  determination 
of  the  will  is  excluded  by  disease,  and  that  the 
capacity  to  distinguish  between  right  and  wrong  is 
inconclusive.  It  may  perhaps  have  to  take  a  general 
form,  leaving  it  to  a  lay,  expert,  or  a  mixed  lay- 
and-expert  jury  to  say  merely  whether  the  accused 
had  a  disease  of  the  mind  of  a  type  recognized  by 
science,  and  whether  the  alleged  criminal  act  was 
of  such  a  character  as  would  naturally  flow  from 
that  type  of  insanity,  in  which  case  it  would  seem 


368        THE   PEISONER   AT   THE   BAR 

obviously  just  to  regard  the  defendant  as  partially 
irresponsible,  and  perhaps  entirely  so.  Possibly 
the  practical  needs  of  the  moment  might  be  met  by 
permitting  such  a  jury  to  determine  whether  the 
defendant  had  such  a  knowledge  of  the  wrongful 
nature  and  consequences  of  his  act  and  such  a 
control  over  his  will  as  to  be  a  proper  subject  of 
punishment.*  This  would  require  the  jury  to  find 
that  the  defendant  had  some  knowledge  of  right  and 
wrong  and  the  power  to  choose  between  them.  In 
any  event,  to  render  the  accused  entirely  irrespon- 
sible, his  act  should  arise  out  of  and  be  caused 
solely  by  the  diseased  condition  of  his  mind.  The 
law,  while  asserting  the  responsibility  of  many  in- 
sane people,  should  recognize  "  partial  "  responsibil- 
ity as  well. 

The  reader  may  feel  that  little  after  all  would 
be  gained,  but  he  will  observe  that  at  any  rate 
such  a  test,  however  imperfect,  would  permit  juries 
to  do  lawfully  that  which  they  now  do  by  violating 
their  oaths.  The  writer  believes  that  the  best  con- 
crete test  yet  formulated  and  applied  by  any  court 
is  that  laid  down  in  Parsons  vs.  The  State  of  Ala- 
bama (81  Ala.,  577) : 

"1.  Was  the  defendant  at  the  time  of  the  commission 
of  the  alleged  crime,  as  matter  of  fact,  afflicted  with  a 
disease  of  the  mind,  so  as  to  be  either  idiotic,  or  otherwise 
insane? 

"2.  If  such  be  the  case,  did  he  know  right  from  wrong 
as  applied  to  the  particular  act  in  question?  If  he  did 
not  have  such  knowledge,  he  is  not  legally  responsible. 

"  3.  If  he  did  have  such  knowledge,  he  may  nevertheless 
not  be  legally  responsible  if  the  two  following  conditions 
concur: 

"  (1)  If,  by  reason  of  the  duress  of  such  mental  disease, 

*  See  State  vs.  Richards,  1873,  Conn. 


INSANITY   AND   THE   LAW  369 

he  had  so  far  lost  the  power  to  choose  between  the  right 
and  wrong,  and  to  avoid  doing  the  act  in  question,  as  that 
his  free  agency  was  at  the  time  destroyed. 

"(2)  And  if,  at  the  same  time,  the  alleged  crime  was 
so  connected  with  such  mental  disease,  in  the  relation 
of  cause  and  effect,  as  to  have  been  the  product  of  it 
solely." 

But  whatever  modification  in  the  present  test  of 
criminal  responsibility  is  adopted,  there  must  come 
an  equally,  if  not  even  more  important,  reform  in 
the  procedure  in  insanity  cases,  which  to-day  is  as 
cumbersome  and  out  of  date  as  the  law  itself.  As 
things  stand  now  in  New  York  and  most  other  juris- 
dictions there  are  no  adequate  means  open  to  the 
State  to  find  out  the  actual  present  or  past  mental 
condition  of  the  defendant  until  the  trial  itself,  and 
ofttimes  not  even  then. 

In  New  York,  in  cases  like  Thaw's,  the  accused^ 
while  fully  intending  to  interpose  the  defense  of  in- 
sanity (which  he  is  now  permitted  to  do  simply  un- 
der the  general  plea  of  "  not  guilty  ")  may  not  only 
conceal  the  fact  until  the  trial,  but  may  likewise  suc- 
cessfully block  every  effort  of  the  authorities  to 
examine  him  and  find  out  his  present  mental  condi- 
tion. He  may  thus  keep  it  out  of  the  power  of  the 
District  Attorney  to  secure  the  facts  upon  which  to 
move  for  a  commission  to  determine  whether  or  not 
he  ought  to  be  in  an  insane  asylum  or  is  a  fit  subject 
for  trial,  and  at  the  same  time  prevent  the  prose- 
cutor from  obtaining  any  evidence  through  direct 
medical  observation  by  which  to  meet  the  claim, 
which  may  be  "  sprung  "  suddenly  upon  him  later 
at  the  trial,  that  the  defendant  was  irresponsible. 

In  order  that  this  may  be  clearly  understood  by 
the  reader  he  should  fully  appreciate  the  distinction 


370        THE   PRISONER   AT   THE   BAR 

between  (1)  the  claim  on  the  part  of  an  accused 
that  he  is  at  present  insane,  and  for  that  reason 
should  not  be  either  tried  or  punished  for  his  alleged 
offence,  and  (2)  the  defence  that  he  was  (irrespec- 
tive of  his  present  mental  condition)  insane  within 
the  legal  definition  of  irresponsibility  at  the  time  he 
committed  it.  No  person  who  is  incapable  of  under- 
standing the  nature  of  the  proceedings  against  him 
or  of  consulting  with  counsel  and  preparing  his 
defence  can  be  placed  on  trial  at  all,  or,  if  already 
on  trial,  can  continue  to  be  tried,  and  if  a  defendant 
"  appears  to  the  court  to  be  insane,"  the  judge  may 
appoint  a  commission  to  examine  him  and  report 
as  to  his  present  condition.  This  may  be  done  upon 
the  application  either  of  the  State  or  of  the  accused 
through  his  counsel. 

It  was  such  a  commission  to  determine  the  ac- 
cused's present  mental  condition  that  District  Attor- 
ney Jerome,  upon  the  basis  of  the  evidence  intro- 
duced by  the  defence,  applied  for  and  secured  during 
the  first  trial  of  Harry  K.  Thaw.  The  commission 
reported  that  Thaw  was  sane  enough  to  be  tried 
and  the  court  then  proceeded  with  the  original  case 
for  the  purpose  of  allowing  the  jury  to  say  whether 
he  knew  the  nature  and  quality  of  his  act  and  that 
it  was  wrong  when  he  shot  and  killed  White. 

This  was  a  totally  distinct  proceeding  from  the 
interposition  of  the  defence  that  the  accused  was 
irresponsible  when  he  committed  the  crime  charged 
against  him  and  was  not  inconsistent  with  it. 

Now  supposing  that  the  Commission  had  reported 
that  Thaw  was  insane  at  the  time  of  examination 
and  not  a  fit  subject  for  trial,  but,  on  the  contrary, 
ought  to  be  confined  in  an  insane  asylum,  the  Dis- 


INSANITY   AND   THE   LAW  371 

trict  Attorney  would  have  spent  some  twenty 
odd  thousand  dollars  and  a  yearns  time  of  one  or 
more  of  his  assistants  in  fruitless  preparation.  Yet, 
as  the  law  stands  on  the  books  to-day  in  New  York, 
there  is  no  adequate  way  for  the  prosecution  to  find 
out  whether  this  enormous  expenditure  of  time  or 
money  is  necessary  or  not,  for  it  cannot  compel  the 
defendant  to  submit  either  to  a  physical  or  mental 
examination.  To  do  so  has  been  held  to  be  a  viola- 
tion of  his  constitutional  rights  and  equivalent  to 
compelling  him  to  give  evidence  against  himself. 

Thus  when  Thaw  came  to  the  bar  at  his  first  trial 
the  State  had  never  had  any  opportunity,  through 
an  examination  by  its  physicians,  to  learn  what  his 
present  condition  was  or  past  mental  condition  had 
been.  The  accused,  on  the  other  hand,  had  had  over 
six  months  to  prepare  his  defence  and  had  fully 
availed  himself  of  the  time  to  submit  to  the  most 
exhaustive  examinations  on  the  part  of  his  own 
experts.  The  defendant's  physicians  came  to  court 
brimming  with  facts  to  which  they  could  testify; 
while  the  State's  experts  had  only  the  barren  op- 
portunity for  determining  the  defendant's  condition 
afforded  by  observing  him  daily  in  the  court  room 
and  hearing  what  Thaw's  own  doctors  claimed  that 
they  had  discovered.  There  was  no  chance  to  rebut 
anything  which  the  latter  alleged  that  they  had  ob- 
served, and  their  testimony,  save  in  so  far  as  it  was 
inconsistent  or  contradictory  in  itself,  remained 
irrefutable. 

There  is  probably  no  procedure  which  would  be 
held  constitutional  whereby  a  compulsory  examina- 
tion of  the  accused  could  be  had  upon  the  mere 
application  of  the  prosecuting  authorities;  but  as 


372       THE   PEISONER   AT    THE   BAR 

a  commission  may  generally  be  appointed  at  any 
time  after  an  accused  has  been  indicted  if  lie  "  ap- 
pears "  to  the  court  to  be  "  insane,"  and  as  it  is 
usually  within  the  power  of  the  District  Attorney 
where  such  is  the  case  to  bring  sufficient  evidence 
of  it  to  the  attention  of  the  court  before  the  prisoner 
is  brought  to  trial,  little  time  is  actually  lost  and 
justice  is  rarely  defeated  except  in  those  cases  (such 
as  Thaw's)  where  an  attempt  is  to  be  made  to  prove 
the  accused  insane  at  the  time  of  the  alleged  crime 
although  sane  at  the  time  of  trial.  Even  here  it 
would  be  the  simplest  thing  in  the  world  to  remedy 
the  difficulty  and  the  proper  legal  steps  in  all  juris- 
dictions should  be  taken  immediately. 

The  two  chief  objects  of  such  reforms  should  be, 
first,  to  relieve  the  ordinary  jury  in  as  many  cases 
as  possible  from  the  necessity  of  passing  upon  the 
delicate  issue  of  a  defendant's  mental  condition  at 
a  previous  time,  and  second,  where  this  may  not  be 
avoided,  to  make  their  task  as  easy  as  possible  by 
providing  (a)  a  more  scientific  and  definite  test  of 
legal  responsibility  and  (&)  an  opportunity  for  ade- 
quate examination  of  defendants  availing  themselves 
of  this  defence. 

This  last  and  most  practical  reform  can  be  easily 
secured  by  a  slight  alteration  in  the  New  York  Code 
of  Criminal  Procedure,  which  already  provides  both 
for  the  entering  of  the  specific  plea  of  insanity  and 
for  the  introduction  of  the  defence  and  the  proof 
of  insanity  under  the  general  plea  of  "  not  guilty." 
At  present  the  defendant  has  his  choice  of  openly 
announcing  or  of  concealing  until  the  trial  his  inten- 
tion of  claiming  that  he  was  insane  and  so  irrespon- 
sible for  his  crime.    This  is  an  advantage  the  results 


INSANITY   AND    THE   LAW  373 

of  which  were  probably  not  fully  contemplated  by 
the  Legislature,  and  one  to  which  an  accused  has  no 
fair  claim. 

Fortunately,  in  the  same  section  of  the  Code 
(658),  which  provides  that  the  court  may  appoint 
a  Commission  to  inquire  into  the  sanity  of  a  de- 
fendant at  the  time  of  his  trial,  there  exists  another 
provision,  hitherto  little  noticed,  that 

"When  a  defendant  pleads  insanity,  as  pre- 
scribed in  Section  336,  the  court  in  which  the  in- 
dictment is  pending,  instead  of  proceeding  with  the 
trial  of  the  indictment,  may  appoint  a  commission 
of  not  more  than  three  disinterested  persons  to  ex- 
amine him  and  report  to  the  court  as  to  his  insanity 
at  the  time  of  the  commission  of  the  crimeJ^ 

If  a  defendant  intends  to  prove  himself  irrespon- 
sible for  his  offence,  why  should  he  not  be  com- 
pelled to  enter  a  specific  plea  to  that  effect?  Once 
he  has  entered  that  plea,  the  law  as  it  stands  just 
quoted  will  do  the  rest.  No  reason  has  been  brought 
to  the  attention  of  the  writer  why  the  admission  of 
any  evidence  upon  the  defendant's  trial  tending  to 
show  that  he  was  mentally  irresponsible  at  the  time 
of  committing  the  crime  should  not  be  made  con- 
tingent upon  the  defence  of  insanity  having  been 
specifically  pleaded  either  at  the  time  of  his  arraign- 
ment or  later  by  substitution  for  or  in  conjunction 
with  the  plea  of  "  not  guilty."  This  would  deprive 
him  of  no  constitutional  right  whatever.  There  is 
no  legal  necessity  of  permitting  an  accused  to  prove 
insanity  under  a  general  answer  of  "not  guilty." 
Then  upon  his  own  plea  that  he  had  been  insane  he 
could  instantly  be  committed  to  some  place  of  ob- 
servation  where   a   permanent   medical   board    of 


374       THE   PEISONEE   AT   THE   BAR 

inquiry  could  be  given  full  opportunity  to  examine 
him  and  study  his  case  with  a  view  to  determining 
his  present  and  past  mental  condition.  He  would 
still  have  in  prospect  his  regular  jury  trial,  but  if 
this  board  found  him  at  the  present  time  insane,  the 
court  could  immediately  commit  him  to  an  asylum 
pending  recovery,  precisely  as  under  the  present 
procedure,  while  if  they  found  him  sane  at  the  pres- 
ent time,  but  reported  that,  in  their  opinion  (what- 
ever test,  "medical"  or  "legal,"  they  might  have 
applied),  he  was  irresponsible  at  the  time  he  com- 
mitted the  crimey  it  is  unlikely  that  any  prosecutor 
would  bring  him  to  trial.  If,  however,  they  re- 
ported that  he  was  not  only  sane,  hut  had  been 
sane  at  the  time  of  his  crime,  it  is  probable  that 
any  proposed  defence  of  insanity  would  be  aban- 
doned, while  if  it  was  still  urged  by  the  accused, 
the  opinion  of  such  a  board  would  carry  far  greater 
weight  at  the  ultimate  trial  of  the  case  than  the 
individual  opinions  of  experts  retained  and  paid 
by  either  side  for  that  particular  occasion  only,  and 
having  had  only  a  comparatively  limited  opportunity 
for  examination.  At  any  rate,  if  the  court  called 
in  the  services  of  such  a  board  of  medical  judges  to 
assist  as  amici  curice  in  determining  the  defendant's 
condition,  while  their  opinion  would  not  be  conclu- 
sive upon  the  jury,  it  would  at  least  do  away  with 
the  present  lamentable  necessity  of  learned  men 
answering  "  yes  "  or  "  no  "  to  a  hypothetical  ques- 
tion fifty  thousand  words  long,  when  the  most 
superficial  personal  examination  of  the  accused 
would  settle  the  matter  definitely  in  their  minds. 
Such  a  procedure  is  in  general  use  in  Germany  and 
other  continental  countries,  and  is  likewise  substan- 


INSANITY   AND   THE   LAW  375 

tially  followed  in  Massachusetts,  Maine,  Vermont, 
and  New  Hampshire.* 

There  is  good  reason  to  hope  that  we  may  soon  see 
in  all  the  states  adequate  provision  for  preliminary 
examination  upon  the  plea  of  insanity,  and  a  new 
test  of  criminal  responsibility  consistent  with  hu- 
manity and  modem  medical  knowledge.  Even  then, 
although  murderers  who  indulge  in  popular  crime 
will  probably  be  acquitted  on  the  ground  of  insanity, 
we  shall  at  least  be  spared  the  melancholy  spectacle 
of  juries  arbitrarily  committing  feeble-minded  per- 
sons charged  with  homicide  to  imprisonment  at  hard 
labor  for  life,  and  in  a  large  measure  do  away  with 
the  present  unedifying  exhibition  of  two  groups  of 
hostile  experts,  each  interpreting  an  archaic  and  in- 
adequate test  of  criminal  responsibilty  in  his  own 
particular  way,  and  each  conscientiously  able  to 
reach  a  diametrically  opposite  conclusion  upon  pre- 
cisely the  same  facts. 

*  Another  equally  efficacious  means  of  dealing  with  the  matter  would 
be  to  substitute,  upon  a  defendant's  plea  of  insanity,  a  full  jury  of  ex- 
perts— like  any  !' special"  jury — ^for  the  ordinary  petit  jury. 


INDEX 


Abatement,  plea  in,  96 
Acquittals,  table  of  percentages  of, 
175,  176,  177 

of  women,  299,  300 

danger  of,  by  lawless  jury,  340- 
344 

"on  ground  of  insanity,"  meaning 
of,  352 
Adams,  "Al,"  319 
Alabama,   test  of  criminal  respon- 
sibility in,  368 
Alibi,  use  of  perjured  evidence  to 

prove,  224,  225 
Ammon,     Robert    A.,     and     "The 

Franklin  Syndicate,"  25,  26 
Appeal,  from  magistrate's  decision, 
47 

nimaiber  of  appeals  so  taken,  47 

no  appeal  by  aggrieved  person  if 
magistrate  discharges,  47 

few  appeals  from  Special  Ses- 
sions, 62 

unfortunate  that  prosecution  can- 
not appeal  on  verdict  of  ac- 
quittal, 186,  337 

defendant  has  right  of,  337 

reversals  on,  339,  340 
Archer,  Agnes,  case  of,  301 
Arrest  (see  Chapter  III),   right  of 
citizen  to  arrest,  despite  com- 
mon belief,  33 

right  to,  ordinarily  left  to  police, 
33 

anyone  may  arrest  for  crime  com- 
mitted in  his  presence,  35 

no  one  may  arrest  for  felony  with- 
out his  view,  unless  felony 
committed,  35 

difference  in  citizen's  and  officer's 
right  to  arrest,  35,  37 

police  construe  their  right  to  ar- 
rest more  broadly  than  law 
permits,  35 

example  of  above,  36 

right  of  police  to  arrest  at  night 
under  New  York  Criminal 
Code,  36 

force  permissible  in  making  arrest, 
38 

in  which  the  power  may  be 
abused,  38 


Arrest,  power  to  arrest  to  be  exer- 
cised with  discrimination,  40, 

41 
the  first  step  in  procedure  toward 

conviction,  42 
after  arrest  prisoner  taken  before 

magistrate,  42 
on  bench  warrant  if  indicted  by 

Grand  Jury,  42 
on  suspicion  illegal  but  necessary, 

43 
nimiber  of  arrests  in  New  York 

County  in  1907,  46 
table  showing  nativity  of  those 

arrested,  46 
Arrest  of  judgment,  motion  for,  269 
Assault,  power  of  magistrate  should 

be  extended  to  punish  cimple 

assault,  49 
Autrefois  Acquit.     See  Pleas. 

Bail,  in  case  of  misdemeanor  may  be 
assessed  by  sergeant  on  duty, 
42 
right  of  accused  to,  except  in  case 

of  murder,  85 
bail  cases  not  tried  in  siunmer,  126 
forfeiture  of,  127,  128 
recommendation  for  discharge  of, 

170 
"skipping"  bail,  317 
Bauman,  case  of,  323 
Bench    warrant,    indicted    and    ar- 
rested under,  42 
Blindness,    "An   Act   for   the   Pre- 
vention of,"  15 
Branding,  266-268,  278 
Breach  of  peace,  49 
"Bridge  of  Sighs,"  115 

Capital  punishment,  no  woman  has 
suffered  here  in  two  decades, 
299 
cases  of,  comparatively  rare,  246 
Challenges,  number  of  peremptory 
in  homicide  cases,  215 
reduction  to  reasonable  number 

desirable,  325,  346 
in  larceny  cases,  346 
Cherry,  "Tom,"  73,  74 
Cignarale  Chiara,  case  of,  299 


377 


378 


INDEX 


Clancy  murder  case,  325 
Code.  See  Statutes  and  Criminal  Law 
Cohalan,  Daniel  F.,  216 
Commercial  Crime.     See  Crime 
Commission,  to  take  testimony  with- 
out state,  123 
application  for,  to  take  testimony 

for  purpose  of  delay,  315 
right  to  take  such  testimony  con- 
fined to  defendant,  315 
motion  for,  317 

to  determine  present  mental  con- 
dition of  an  accused,  369-72 
to  determine  mental  condition  at 

time  of  offense,  369-76 
desirability  of  such  being  perma- 
nent and  salaried,  373,  374 
Commutation,  of  sentence  for  good 
behavior,  273 
how  determined,  273 
periods  of,  (note)  273 
distinguished  from  indeterminate 
sentence,  274 
Complaints,  in  Court  of  Special  Ses- 
sions, 63 
or  informations,  ancient  form  of, 
89 
Confession,  not  sufficient  to  convict 

without  corroboration,  330 
Contempt    of    court,    practical    in- 
ability of  New  York  courts 
to     punish     editorial     con- 
tempts, 347 
defined  in  Penal  Code,  348 
Convictions,  proof  of  prior,  admitted 
for  what  purpose,  148,  166 
table  showing  percentages  of,  175, 

176 
too  few,  177 
of  innocent  men  almost  unknown, 

247,  336 
of  women  indicted,  in  same  pro- 
portion as  men,  299,  300 
County  clerk,   grand   jurors  drawn 

by,  86 
"County  Detectives,"  87 
Court  officers  as  plea  getters,  173 
Cowing,  Rufus  B.,  Judge,  255 
Crime,  What  is    Crime?  Chapter  I, 
definition  of,  1 

relation  of,  to  wrongs,  1,  2,  3 
artificial    character    of    laws    de- 
fining, 4 
mala  prohibita  and  mala  in  se,  6 
little  significance  in  mere  name  of 

crimes,  6 
arbitrary    nature    of    acts    made 

crimes,  7 
relation  of,  to  insanity,  22 
theory   that   crime   is    a   disease 

overworked,  23 
criminal  instinct  in  all,  23 
commercial  crime  favored  by  law, 
24,  30,  223 


Crimes,  definition  of,  limiting  it  to 
those  who  "make  a  liv- 
ing" thereby  is  inadequate, 
28 

fundamental  cause  of,  disrespect 
for  law,  30,  334 

attitude  of  jury  toward  commer- 
cial crime,  210,  211 

What  Fosters  Crime?  Chapter 
XVII 

not  on  increase  in  proportion 
to  growth  of  population, 
334 

fostered  by  idea  that  criminal  jus- 
tice   IS  slow    and    uncertain, 
335,  336 
by    constitutional    safeguards, 

335,  336 
by  defects  in  our  criminal  law 

and  procedure,  338 
by  attitude  of  "  yellow  "  press, 

338 
by  belief  that  higher  courts  re- 
verse on   technical   grounds, 
339 
by  acquittal  of  guiltv  by  sen- 
timental juries,  340-^342 

restraints  on,  344-346 

fear  of  present  criminal  prosecu- 
tion and  punishment  great- 
est restraint  on,  344-346 

may  be  deliberate  or  the  result  of 
accident  or  impulse,  345 
Criminal  Courts  Building,  descrip- 
tion of,  115 
Criminal  law,  adapted  especially  to 
punishment  of  crimes  of  vio- 
lence, 16 

impression  of  ordinary  citizen 
concerning,  149,  335 

at  present  tends  to  retard  and  de- 
feat justice,  336 

present  state  of,  result  of  exag- 
gerated regard  for  personal 
liberty,  336 

English  system  of,  better  than 
ours,  336 

leaves  many  technical  avenues  of 
escape,  338 
Criminal     responsibility     (see     In- 
sanity and  the  Law,  Chapter 
XVIII),  350 

test  of,  353 

unchanged  since  case  of  Mc- 
Naughten,  353 

questions  propounded  by  House 
of  Lords  to  the  judges,  with 
their  answers,  354 

delusions  in  the  law  of  insanity, 
significance  of,  355,  356 

doubtful  interpretation  to  be 
given  to  words  "wrong"  and 
"know,"  357 

Hadfield's  case,  358 


INDEX 


379 


Criminal  responsibility,  present  New 
York  test  does  not  recognize 
any  lack  of  inhibitory  capac- 
ity, 359 

test  is  imperfect,  inadequate,  and 
vague,  357,  359 

difficult  of  application,  357 

juries  disregard  it  except  in  ex- 
treme cases,  360-366 

expert  testimony  in  insanity  cases 
discounted  by  jury,  360,  361 

requirements  of  proposed  new 
tests,  366-368 

Alabama  test,  368 

the  "defense"  of  insanity  often 
confused  with  claim  of  pres- 
ent insanity,  369 

present  insanity  determined  by 
commission,  369-376 

mental  condition  at  time  of  crime 
should  be  likewise  deter- 
mined, 369-376 

defendant  may  refuse  to  permit 
examination,  370 

present   ineffectualitv   of  law   in 
New  York,  370-376 
could  be  easily  remedied,  372- 
374 

plea  of  insanity  should  be  made 
compulsory,  373 
defendants  so  pleading  should 
be  remanded  for  observat- 
ion by  permanent,  salaried, 
expert  conunission,  as  in 
Germany  and  elsewhere,  373, 
374 

probable    unconstitutionality    of 
other  suggested  remedies,  374 
Criminals,     not     necessarily     worse 
than  other  people,  5,  9 

not  usually  criminal  in  all  direc- 
tions, 5 

generally  specialists,  5 

intentional,  as  distinguished  from 
accidental  or  occasional,  9 

as  distinguished  from  sinners,  17 

Who  are  the  Real  Criminals? 
Chapter  II 

Charles  D.  Warner's  definition  of, 
19 

traditional  criminals  few,  19 

the  modern  criminal,  20 

degenerate  class  of,  exaggerated 
by  continental  writers,  21 

sentimentality  concerning,  over- 
done, 21,  23,  196 

majority  of,  not  mentally  defec- 
tive, 22 

close  relation  between  all,  22,  29 

why  men  are  criminals,  24 

dishonest  business  men  real  crim- 
inals, 24,  25 

law  at  present  favors  business 
crimmal,  25 


Criminals,  professional  criminals  and 
degenerates  form  small  pro- 
portion of  law  breakers,  29 

distinction  between  criminals  and 
convicts,  42 

begin  with  petty  infractions  of 
law,  72 

professional  criminals  generally 
plead  guilty,  148 

receive  consideration  for  saving 
expense  of  trial,  148 

may  obtain  speedy  trial  if  de- 
sired, 152 

weight  given  to  prior  conviction, 
148 
Criminology,  modern  tendencies  in, 
17 

penological    movements,    first    in 
direction  of  prison  reform,  21 
and    second    in    study    of    de- 
generacy, 22 
Cross-examination,  use  of,  231,  240 

impossible  to  cross  -  examine 
through  interpreter,  239 

of  women  difficult,  291,  292 

Defendants,  hostile  attitude  of 
courts  to,  in  ancient  times,  16 

present  rights  of,  16,  17 

presumed  to  be  innocent,  44 

have  right  to  counsel,  43 

sensations  of,  45 

cannot  be  compelled  to  testify,  91, 
326 

may  move  to  dismiss  indictment 
and  thus  retard  trial,  91 

may  easily  obtain  speedy  trial,  152 

their  own  testimony  generally 
convicts,  154 

rapid  trial  redounds  to  their 
benefit,  156 

if  innocent  need  not  fear  to  testify, 
162 

majority  of  those  failing  to  tes- 
tify convicted,  163 

may  defend  themselves,  164 

often  wise  to  rest  on  People's 
case,  164 

danger  to,  by  perjury  of  one  of 
their  own  witnesses,  164 

influenced  to  plead  by  result  of 

grior  cases,  174 
t  by  prosecutor's  desire  to 
dispose  of  case,  220 

favored  by  jury,  222 

description  of,  while  waiting  ver- 
dict, 241 

right  to  poll  jury,  247 

when  convicted  rarely  show 
emotion,  247,  248 

baay  present  plea  for  clemency  be- 
fore sentence,  271 

latitude  allowed,  337,  338 

(See  Criminals.) 


380 


INDEX 


Degrees   of   crime,    arbitrary   char- 
acter of,  8 
Delays,  The  Law's,  Chapter  VII 

secured  by  motions  based  on 
irregularities  before  Grand 
Jury,  93 

delay  the  first,  in  the  police 
court,  108 

delay  the  second,  before  the 
Grand  Jury,  114 

delay  the  third,  pleading,  119 

delay  the  fourth,  in  preparation 
of  case  for  trial,  121 

delay  the  fifth,  after  case  on 
calendar,  before  trial,  122 

delay  the  sixth,  dilatory  tactics 
of  counsel  for  defense,  123 

delay  the  seventh,  bail  cases  not 
tried  in  summer,  126 

delay  the  eighth,  forfeiting  recog- 
nizance, 126 

alienates  support  of  citizens,  129 

defendant  has  everything  to  gain 
by  delay,  314 

method  of  securing,  315,  316 

motions  to  secure,  316 

many  penal  statutes  and  pro- 
cedure tend  to  retard  and 
defeat  justice,  336 

(See  Red  Tape, Chapter  VIII,  129.) 
Delusions,  significance  of,  in  law  of 

insanity,  355,  356 
Dementia  prcecox,  351 
Demurrer,  316 
Dinser,  Gustav,  case  of,  289 
Disagreements,    two    equivalent   to 
acquittal,  220 

large  number  of  trials  resulting 
in,  244 
Disorderly  conduct,  jurisdiction  over, 

by  magistrate,  49 
Dodge-Morse  divorce  case,  321,  322 
Donohue  v.  N.  Y.,  N.  H.  &  H.  R.  R., 

case  of,  259 
Dummies,  318-322 

attempt  to  induce  witness  to 
identify,  321,  322 

most  famous  case  of,  321 
District  Attorney  (see  Prosecutor), 
power   to    act    when    magis- 
trate discharges,  47,  48 

copies  papers  forwarded  from 
magistrate  and  subpoenas 
witnesses  for  Grand  Jury, 
87  ^' 

prepares  calendar  for  Grand  Jury, 
87 

draws  indictments,  87 

preliminary  examination  of  wit- 
nesses by,  117 

a  quasi-judicial  officer,  167,  168 

limitations  placed  upon,  by  laws 
of  evidence  and  procedure, 
165,  168 


District  Attorney,  should  move  de- 
fendant's discharge  if  con- 
vinced of  innocence,  168 

has  same  latitude  in  summing  up 
as  defendant's  attorney,  168 

in  presentation  of  case.  People 
should  have  same  rights  as 
an  individual,  168 

should  win  confidence  of  jury,  169 

function  of,  304 

can  rebut  defense  more  easily 
where  it  has  been  exposed 
before  magistrate,  312 

necessity  of  examination  of  jury 
by,  323 

Electric  chair,  jury  send  to,  only  in 

atrocious  cases,  213 
Ellis,  William  H.,  case  of,  315,  316 
Elmira,  release  from,  165 

sentence  to,  indeterminate,  165 
Evidence,    character    of    defendant 
provable   only  when   put  in 
issue  by  himself,  161,  166 

defendant's  right  to  give,  himself, 
161-162 

but  no  inference  to  be  drawn  from 
defendant's  failure  to  testify, 
160,  162 

rule  permitting  defendant  to  tes- 
tify practically  forces  him  to 
do  so,  163 

good  character  of  complainant 
and  witnesses  only  provable 
on  attack,  167 

amount  of  strictly  accurate  tes- 
timony very  small,  225 

"refreshing  recollection,"  in  prac- 
tice absurd,  235 

method  of  refreshing  recollection, 
235 

(See  Witnesses) 
Ex  Parte,  proceeding  before  Grand 
Jury  is,  90,  99 

Felix,  John,  case  of,  15 
Felonies,  The  Trial  of,  Chapter  IX 
(See  District  Attorney,   Prosecu- 
tor, Defendants,  etc.) 
distinction   between  felonies  and 
misdemeanors  often  without 
merit,  30 
number  of  persons  arrested  for,  85 
should   be   prosecuted   by   Infor- 
mation, 100 
rapidity  of  trials  for,  152,  154 
description  of  trials  for,  150 
attempted  suicide,  171 
compounding,  by  agreeing  not  to 
prosecute,  349 
Foster,  Judge  Warren  W.,  216 
"Franklin  Syndicate,  The,"  26 
Fursman,  Judge,  321 


INDEX 


381 


General  Sessions,  Court  of,   appeal 
to,  from  magistrate's  courts, 
47 
procedure  in,  119,  150,  151 
description  of  (see  Felonies),  150 
Goff,  Recorder,  86,  290 

Habeas  Corpus,   for  prisoners  held 
in  police  court,  43 
to  test  magistrate's  jurisdiction, 

47 
only    remedy    for    illegal    com- 
mitment, 49 
writ  of,  often  secured  for  delay, 
317 
Hackett,  Orlando  J.,  case  of,  290 
Hadfield's  case,  358 
Harris,  Carlyle  W.,  case  of,  263,  264 
Hawkins,    Sir   Henry,    on   want   of 
uniformity  in  sentences,  189, 
190 
Homicide,    typical    case    of    man- 
slaughter, 8 
large    proportion    of    defendants 
charged  with,  plead  guilty  to 
manslaughter,  174 
charge  of  court  in  cases  of,  243 
verdicts  in  cases  of,  246 
sentence  in  cases  of  murder  fixed 

by  law,  261 
larger   proportion   of   women   in- 
dicted   convicted    of,     than 
men,  334 
Howe,  "Bill,"  297,  298,  323 
Howe  &  Hummel,  322 
Himnimel,  Abraham,  321,  322 

Imprisonment,  pending  appeal,  ad- 
visability of,  346 
Impulse.     See  Irresistible. 
Indeterminate    sentence,    definition 

of,  273 
constitutionality    of,    upheld    by 

courts,  274 
distinguished  from  commutation, 

274 
Indictments,  found  by  Grand  Jury, 

81 
"true  bills,"  82 
number  of,  found,  85 
drawn  by  District  Attorney,  87 
form  of,  87,  88 
for  larceny,  88,  89 
invalid,  when,  91 
defendant  may  move  to  dismiss, 

when,  91,  92 
ratio  of  women  to  men  indicted, 

292 
not  "pigeon-holed"  or  "lost"  in 

New  York  County,  314 
motion  to  dismiss,  317 
for  forgery,  331 
Information,    in    Court    of    Special 

Sessions,  48,  49 


Information,  of  aggrieved  party,  old 

form,  89 
proceeding  by,  in  different  states, 

100 
all  felonies  should  be  prosecuted 

by,  100 
Insanity,  not  true  that  majority  of 

criminals    are    mentally    de- 
fective, 22 
sentence  cannot  be  pronounced  on 

insane  person,  269 
how  those  insane  at  sentence  are 

dealt  with,  269 
defendants  unlikely  to  feign,   at 

sentence,  270 
used  as  means  of  avoiding  trial 

by  rich,  317 
As  A  Defense  to  Crime,  Chapter 

XVIII,  350 
(Also  see  Criminal  Responsibility 

and  Commissions) 
Inspection,  of  Grand  Jury  minutes, 

122,  316 
Interpreters,    usually    very    incom- 
petent, 239 
difficulty      of      cross  -  examining 

through,  239 
Irresistible  impulses  not  recognized 

by  present  New  York  test  of 

responsibility,  359 

Johnson,  Richard,  words  of,  before 

sentence,  262 
Judge,  The  (Chapter  X),  functions 
of,  178 

most  difficult  function  of,  to  im- 
pose sentence,  178,  179 

his  conduct  during  trial,  179 

may  "svun  up"  in  England  but 
not  here,  179,  337 

his  business  practically  to  "even 
things  up,"  182 

should  interrogate  witnesses,  182 

difference  between  his  theoretical 
and  practical  functions,  179, 
182 

should  not  interfere  witli  jury  on 
questions  of  fact,  183 

able  to  convey  opinion  to  jury  de- 
spite the  law  to  contrary,  184 

most  judges  too  lenient,  187,  195, 
196 

tendencies  often  well  known,  187, 
188 

want  of  uniformity  in  sentences, 
189,  199 

interference  with  judges  in  sen- 
tences, 191 

matters  presented  to,  in  deter- 
mination of  sentence,  192, 193 

restitution  considered  by,  in  sen- 
tencing, 195 

reasons  for  leniency,  195,  196 

fear  of  reversal,  196 


382 


INDEX 


Judge,  impression  that  judge  is 
easy-going  or  subject  to  in- 
fluence conduces  to  lawless- 
ness, 197 

judicial  propriety  desirable,  198 

sometimes  gives  benefit  of  rea- 
sonable doubt  after  convic- 
tion, 199,  200 

inequality  in  punishment,  200-202 

no  place  for  weak  judge,  204 

when  a  law-breaker,  210 

responsibility   of,    in   sentencing, 
261,  272 
Judgment,  arrest  of,  269 
Jury,  Grand  (Chapter  VI) 

power  to  hold  for,  by  magistrate, 
47 

indict  as  matter  of  course,  56 

indictment  must  precede  trial  for 
felony,  81 

composition  of,  81,  82 

finding  true  bill  by,  82 

Is  archaic,  82 

procedure  by  information  in 
states  where  there  is  no  grand 
jury,  82 

first  record  of  Grand  Jury  pro- 
ceeding in  New  York,  82,  83 

number  of  persons  held  for,  in 
last  six  years,  85 

how  chosen,  86 

charged  by  judge,  87 

calendar  of,  prepared  by  district 
attorney,  87 

nature  of  proceedings  before,  90 

may  send  for  witnesses,  91 

relieves  district  attorney  of  re- 
sponsibility for  failure  to 
prosecute,  91 

historical  development  of,  (foot- 
note) 92-95 

irregularities  before,  93 

power  as  general  inquisitorial 
body,  93,  94 

power  of,  vast,  94 

tendency  to  exceed  powers,  95,  96 

presentment  by  (see  Present- 
ment), 96,  97 

why  not  abolish?  99 

original  necessity  for,  has  dis- 
appeared, 98,  99 

one  purpose  only  for  which  it 
should  be  continued,  98,  101 

original  advantage  of,  99 

out  of  harmony  with  present  in- 
stitutions, 99 

few  cases  originate  before,  100 

abolished  in  certain  states,  100 

subpoenas  to  appear  before,  115 

description  of  proceeding  before, 
116-118 

delay  before,  119 

indict  for  "murder"  in  most 
homicide  cases,  174 


Jury,  Petit  (ChajJter  XI),  trial  be- 
fore, after  indictment,  56 

disinclination  of,  to  convict,  57 

find  it  difficult  not  to  be  prej- 
udiced by  defendant's  failure 
to  testify,  160,  161 

improves  with  service,  169 

see  little  of  professional  criminals, 
148,  169 

inclined  to  take  law  in  its  own 
hands  in  trivial  cases,  171, 
172 

inclined  to  convict  on  substantial 
evidence  in  serious  cases,  172 

petty  offender  profits  by  lawless- 
ness of,  172 

why  efficient  in  criminal  cases,  172 

when  at  its  best,  173 

apt  to  acqfuit  early  in  term,  173 

percentage  of  convictions  to  ac- 
quittals by,  175,  176 

function  of,  205 

capacity  of,  205 

apt  to  usurp  functions  of  judge, 
206 

English  jury  more  satisfactory, 
206 

have  little  regard  for  law  here, 
207,  208 

inaccuracy  of  verdicts  by,  209 

reason  for  arbitrariness  on  part 
of.  209 

attitude  of,  toward  different 
crimes,  211,  212 

have  small  regard  for  life,  209,  213 

time  required  to  select,  in  homi- 
cide case,  215 

futility  of  wasting  time  in  selec- 
tion of,  215 

some  examination  of,  imperative, 
216 

method  of  escaping  service  on,  217 

often  contains  officious  members, 
219 

desirability  of  homogeneity  in, 
219,  220 

eleven  jurors  should  find  verdict, 
221,  222 

favors  defendant,  222 

practically  successful,  223  ^ 

first  member  of,  selected  is  fore- 
man, 243 

take  time  before  returning  ver- 
dict, 253 

deliberations  of,  secret,  254 

failure  in  duty  by,  255 

the  influence  of  one  strong-minded 
member  upon,  255,  256 

effect  on,  of  women's  evidence, 
293 

effect  of  appeals  to  sympathy,  322 

disregard  the  law  in  applying  test 
of  criminal  responsibility, 
360-366 


INDEX 


383 


Jury  syBtem,  works  best  in  criminal 
cases,  192 
a  practical  success,  223 
works  "substantial  justice,"  223 
brought    in    contempt   by    senti- 
mental or  lawless  acquittal, 
343,  344 
Jurisdiction,  of  magistrate,  47 
of  courts  tested  by  habeas  corpus, 
43,  47 

Larceny,    magistrate   compelled   to 
hold    defendant    for    higher 
court  in  all  cases  of,  48 
summary   jurisdiction    of   magis- 
trate should  be  extended  to 
petit  larceny,  48 
now  frequently  treated  in  police 
courts  as  disorderly  conduct, 
49 
form  of  indictment  for,  88 
grand,    value    necessary   to    con- 
stitute, 102 
Lawyers,   retained  to   advise  pros- 
pective criminals,  10 
seek  to  postpone  rather  than  has- 
ten trials,  152 
business  of,  to  create  reasonable 

doubt,  304 
(See  Shysters) 
Legal  Aid  Society,  77 
"Legal"  insanity,  354,  360-366 
Levy,  Abraham,  323 
Lincoln,  Abraham,  advice  of,  326 
Liquor    Tax    cases,     the    bane    of 
Special  Sessions,  69 
few  convictions  for  violation  of 

(see  note),  210 
juries  reluctant  to  convict  in,  70, 
209,  210 
Livingston,  case  of,  13 

Magistrates,  broad  power  of,  43,  48 

committment  by,  45 

how  regarded  by  humble  classes, 
46 

number  of  cases  disposed  of 
yearly  by,  46 

jurisdiction  of,  46,  47,  48 

power  to  hold  for  higher  court  of, 
47,  85 

jurisdiction  of,  should  be  ex- 
tended over  petit  larceny  and 
simple  assault,  48,  49,  57 

jurisdiction  of,  over  breach  of 
peace,  49 

tendency  of,  to  hold  for  higher 
courts  rather  than  spend 
time  for  examination,  56 

power  of,  for  good,  58 

close  contact  of,  with  police,  58 

appointment  of,  generally  politi- 
cal, 59 

(See  Police  Courts) 


Mala    prohihita,     as    distinguished 
from  mala  in  se,  6 
illustrations  of,  10 
Manhattan  Bank,  case  of,  254 
Mayhem,  crime  of,  316 
McCord,  People  vs.,  case  of,  12 
McNaughten  s  case,  353 

doctnne  of,  354 
"Medical"  insanity  and  "legal  "  in- 
sanity, 354,  365 
Miller   and   "The   Franklin   Syndi- 
cate," 26 
Misdemeanors  (Chapter  V),  may  be 
morally  worse  than  felonies,  6 
illustrations  of  what  are,  in  New 

York  state,  10 
distinction  between,    and   felony 

often  without  merit,  30 
tried  in  Special  Sessions,  85 
(See  Special  Sessions) 
Mock  Duck,  case  of,  218,  318,  319 
Moran,  trial  of,  216 
Morse-Dodge  divorce  case,  320,  322 
Motions,   for  delay  in  proceedings, 
316,  317 

New  trial,  motion  for,  at  sentence, 

276 
"Not  proven,"  inadvisability  of  a 

verdict  of,  244,  245 
Nott,  Charles  C,  "In  the  District 
Attorney's  Office,"  155 
cases  cited  by,  162,  166 
quoted  on  defendant's  failure  to 
testify,  163 

Oath,  in  police  court,  112 

before  Grand  Jury,  118 
Omissions,  usually  not  crimes,  10 

illustrations  of,  10 
Osborne,  James  W.,  328 

Parker,  Mabel,  case  of,  330 
Parole.     See  Suspended  Sentence 
Patterson,  Nan,  case  of,  299,  301, 335 
Pedigree,  taking  of,  155,  248,  252 
Perjury,  crime  of,  224,  225 

large  amount  of,  among  defend- 
ants' witnesses,  225 
false  answer  in  taking  pedigree  is 

perjury,  251 
women   more   ready   to   commit, 

than  men,  285 
in  defendant's  own  testimony,  311 
Plea,  in  Court  of  Special  Sessions, 
63,  120 
in  abatement,  92 
of   "guilty,"   "not   guilty,"   and 

"autrefois  acquit,"  92 
withdrawal  of,  155 
benefit  of  clergy,  266-269 
of    "insanity       should    be    com- 
pulsory,    where     defense    is 
anticipated,  373 


384 


INDluX 


Police    Courts    (Chapter   IV).     See 
Magistrates 
right   of  arrested    to    immediate 

hearing  in,  43,  85 
right  to  counsel  in,  43 
attitude   in,    toward   defendants, 

44 
description  of,  44,  109 
harsh  treatment  in,  45 
proportion  of  cases  there  disposed 

of  summarily,  45 
great  importance  of,  45 
a  day's  work  in,  50,  56 
proceedings  in,  110,  111 
delay  in,  113 
Police  headquarters,  described,  32 
Police  judge.     See  Magistrate 
Police  officers,  great  awe  of  persons 
in  general  for,  31 
right  to  arrest  (see  Arrest) 
contact  with  magistrate,  58 
assault  on,  70 
the  police  sergeant,  107 
Police  station,  proceeding  in,  107 
"Policy,"  business  of,  319 

(See  Al.  Adams) 
Polling,  of  jury,  247 
"Poor    Man's    Court    of    Appeals, 

The."     See  Police  Courts. 
Prescott,    quoted    on    integrity    of 

judges  among  Aztecs,  198 
Presentments,  by  Grand  Jury,  96 
often  unnecessary  and  frivolous, 
97,  98 
Press,      sensational      press     fosters 
crime,  334,  338 
domination  of  court  room  by,  347 
trial  by,  347,  348 
Property    clerk,     at    police    head- 
quarters, 132,  134,  137,  138, 
146,  147 
at  district  attorney's  office,  134 
Prosecutor,  effect  of  experience  on, 
4 
often  protects  accused  from  shy- 
sters, 78 
delicate    position    of,    when    in- 
formed of  facts  inadmissible 
in  evidence,  166 
allowed  small  latitude,  337 
(See  District  Attomev) 
Purdy,  Ambrose  H.,  324 
Punishment,   unfair  apportionment 
of,  under  the  law,  26 
once      a      matter      of      private 

vengeance,  32 
now     for    protection     of     public 

safety,  32 
desire  for  punishment  of  accused 
still   moving   cause   of  most 
prosecutions,  32 
imposed  by  magistrate,  47 
inequality  in,  the  exception,  200 
(See  Sentences) 


Questions  of  House  of  Lords  to  Eng- 
lish Judges  after  McNaugh- 
ten's  case,  354 

Reasonable  doubt,  definition  of,  160 
giving  benefit  of,  after  conviction, 

199,  200 

difficulty  in  finding  guilt  beyond, 

244,  245 
defendant  entitled  to  benefit  of, 

304 
certificate  of,  346 
Recognizance,    form   of   (see   Bail), 

127 
Recommendation,    cases    dismissed 
on,  of  district  attorney,  with- 
out trial,  170 
ground  of,  170,  171 
to  mercy  by  jury,  245 
to  mercy  usually  considered  by 
jurors  as  part  of  verdict,  245 
to  mercy,    facilitates   agreement, 
246 
"Red    Tape"    (Chapter    VIII),    at 
police  headquarters,  137,  138, 
144,  147 
at  district  attorney's  office,  140, 

143 
(See  Delays) 
Requests,  to  charge,  339 
Reversals  of  convictions,  effect  on 
community  of,  198 
nmnber  of,  on  appeal,  339,  340 
rare  on  technical  grounds  in  New 

York  state,  339 
usuallv  fault  of  trial  judge,  340 
"Ringers,"  318-320 
"Runners,"  methods  of,  73,  75 

Scannell,  John  J.,  case  of,  92 
Schorling,  J.  Holt,  quoted,  table  of 
increase     and     decrease     in 
specific  crimes,  20 
Sentences  (Chapter  XIV),  want  of 
uniformity  in,  189,  199 
judges  too  lenient  in,  187,  195 
matters   considered   by  judge   in 

imposing,  192,  195 
impossible  to  secure  equality  in, 

200,  202 

table  showing  sentences  for  dif- 
ferent crimes,  201,  202 

might  be  imposed  by  judges  en 
banc,  203 

for  perjury,  heavy,  224 

jury  would  be  more  severe  in, 
than  judge,  245 

for  murder  fixed  by  law,  261 

great  responsibility  of  judge  in 
matter  of,  261 

to  life  imprisonment,  264 

of  death  in  all  felony  cases,  for- 
merly, 265 


INDEX 


385 


Sentences,  motions  to  arrest  judg- 
ment, 269,  270 
appeal  for  clemency  before,  271, 

272 
little  mercy  to  old  offenders  in,  272 
(See  Indeterminate  Sentences) 
remarks  of  judge  at  time  of,  274, 

275 
lightness  of,  275 

advantages    of    short    sentences, 
275 
/'Shysters,"  methods  of,  68,  74-80, 
/  122,  327 

(See  Tricks  of  the  trade) 
"Sick  engineers,"  14,  170 
never  plead  guilty,  170 
Special  panel,  173 
Special  Sessions,  Court  of  (see  Mis- 
demeanors),  information  in, 
48 
power  to  try  petit  larceny  cases,  48 
old  court  of,  62 
present  composition  of,  62 
number  of  cases  disposed  of  in, 

62,  63 
procedure  in  bringing  cases  be- 
fore, 63 
speedy  trial  in,  63 
jurisdiction  of,  64,  65 
rapidity  of  procedure  in,  65,  66 
Lifjuor  tax  cases  in,  69 
attitude   of,    toward   assaults   on 

police  officers,  70 
practically  final   court  of  dispo- 
sition for  misdemeanor,  71 
important  cases  often  tried  there- 
in, 71 
efficiency  of,  62,  72 
lawyers  in,  72,  73 
menace  of  "shysters"  in  Special 
Sessions    and    police    courts, 
79,  80 
Statutes,    multiplicity   of,    undesir- 
able, 12 
"to  prevent  blindness,"  15 
punishing  contempt,  348 
Stay,  of  proceedings,  317 
Stolen    property,    recovery    of,    by 
owner.     See  Red  Tape 
innocently  receiving,  329 
Street  walkers,  75,  76,  77 
Subpoenas,  served  by  district  attor- 
ney for  Grand  Jury,  87 
Summerfield,  "Larry,"  14,  26,  27 
Sweetser,  William  A.,  321 
Supreme     Court,     Criminal     Term, 
tries  most  of  homicide  cases, 
174 
Suspended  sentences,  in  large  num- 
ber   of    cases    against    first 
offenders,  195,  261 

Technicalities,  reversal  on  technical 
grounds,  339,  340 


Technicalities,    means    to     abolish, 

347 
Test  of  criminal  responsibility,  353 

proposed  new  tests,  360-368 
Thayer,    J.    B.,    on    historical    de- 
velopment   of    Grand    Jury 
(foot-note),  92,  95 
cited,  221,  301 
Thaw,  case  of  H.  K.,  350,  370 
"Tombs,"  The,  115 
Tricks  of  the  Trade  (Chapter  XVI), 
of  the  successful  practitioner, 
303 
bolder  than  in  civil  courts,  304 
inducing    complainant    to    with- 
draw charge,  309,  310 
securing  adjournments,  310 
persuading    court    that    case    is 

trivial,  310 
obtaining   immediate   hearing   to 
find   out   People's   evidence, 

waiving  examination  to  conceal 
defendant's  case,  311 

which  are  utilized  after  magis- 
trate has  held  accused,  314 

securing  permission  for  defendant 
to  appear  before  Grand  Jury, 
314 

securing  delay  in  trial,  314 

introducing  "ringers"  in  place  of 
real  defendant,  318-320 

attempt  to  have  witnesses  iden- 
tify dummies,  321,  322 

appeals  to  sympathy  of  jury,  305, 
307,  322 

offer  to  "take  first  twelve"  jurors, 
323 

obtaining  one  favorable  juror,  323 

getting  members  of  same  race  as 
defendant  on  jury,  324 

gaining  good  will  of  jury  by  chance 
remark,  325 

defendant's  counsel  intentionally 
appearing  intoxicated,  325 

supplying  missing  evidence  in 
counsel's  opening  or  closing, 
326,  328 

getting  one  of  two  defendants  to 
take  entire  blame,  328,  332 

most  of  them  unsuccessful,  333 
True  bill.     See  Indictment 
Twitchell,  case  of,  282,  283 

Verdicts    (Chapter    XIII),    lack    of 

accuracy  in,  209 
arbitrariness  of,  209 
form  of,  243 

procedure  in  rendering,  244 
difficulty  in  reaching,  244,  245 
of  murder  in  first  degree  rare,  246 
how  received  by  defendants,  246, 

247 
slowness  in  reaching,  253 


386 


INDEX 


Verdicts,  in  Manhattan  Bank  case, 

255 
by  eleven  jurors,  advisability  of, 

347 
Voir  dire,  305,  324 

Warren,     Chas.     D,,     definition    of 

criminals  by,  19,  24 
within  the  definition,  24 
"Watch,  The,"  109 
Wellman's  "Art  of  Cross-Examina- 

tion,"  282,  287,  298,  299 
Wigmore,   Professor    John  H.     See 

Introduction 
**Wire  tappers,"   wire  tapping  de- 
scribed, 14 
(See  McCord  and  Livingston  and 

Tompkins  cases") 
Witnesses  (Chapter  XII).     See  Evi- 
dence, 
value  of  testimony  of,  224 
original  capacity  of,  for  observing 

correctly,  225 
children  madce   remarkable,    225, 

226 
often  honestly  mistaken,  226 
present     stronger     testimony     in 

court  than  upon  preliminary 

examination,  228 
unconscious  amplification  by,  229, 

230 
fallibility  of  the  honest  witnesses, 

230 
recollect  impossible  details,  232 
who  refresh  recollection,  233 
ul  timate  test  of  value  of  testimony 

of,  236 
physical  condition  of  important, 

236 
to  be  convincing  must  be  posi- 
tive, 237 
the  most   effective  witness  with 

jury,  237 
measurement  of  time  by,  238 
difl5culty     of     finding     language 

comprehensible  to,  238,  239 
difficulty  with  foreign,  239 
Wood,  Fernando,  319 
Women  in  the  Courts  (Chapter  XV), 

sentences  of,  table,  202 
their  evidence  originally  regarded 

with  suspicion,  279-281 
men  said   to   rely  on  power   of 


Women  in  the  Courts,  reason,  women 
on  intuition,  281 

do  not  differ  from  men  in  original 
capacity  to  observe,  282 

confuse  knowledge  with  imagina- 
tion and  belief,  282 

illustration,  283 

their  habit  of  stating  inference, 
283 

more  ready  to  swear  testimony 
through  than  men,  284 

more  ready  to  commit  perjury 
than  men,  285 

often  make  remarkable  witnesses, 
285 

frequently  couple  with  answer 
statement  damaging  to  de- 
fendant, 285 

silent  cross-examination  of,  the 
most  effective,  286 

old  women  simulating  stupidity 
the  most  dangerous,  288 

more  difficult  to  cross-examine 
than  men,  291,  292 

testimony  of,  little  different  from 
men's,  292 

number  of,  indicted  and  tried,  292 

number  of  complaints  by,  292 

tried  by  opposite  sex,  293 

more  likely  to  persuade  jury  than 
men,  293,  295 

effect  of  beauty  of,  on  jury,  295 

juries  apt  to  be  more  lenient  with, 
296 

no  woman  has  suffered  death 
penalty  in  this  country  in 
twenty  years,  299 

number  of,  convicted  in  propor- 
tion to  those  indicted  com- 
pared with  men,  299,  300 

number  of,  prosecuted,  few,  300, 
301 

earliest  case  on  record  of  prose- 
cution of  woman  for  murder, 
301 

larger  proportion  of,  charged  with 
murder,  than  men  convicted, 
334 

false  popular  impression  that  few 
women  are  convicted,  334 
Wrongs,  relation  of,  to  crime,  1,  2,  3 

huge  number  of,  not  crimes  at  all, 
7 


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